Principal, Environmental Engineering Firm
Creation of fiduciary and reporting obligations to both client and public authority
Potential discovery of environmental concerns that could conflict with client's development interests
Provision of professional engineering services within area of competence (environmental engineering)
NSPE Code Section III.2.d., encouragement to adhere to sustainable development principles
Provide professional environmental analysis services to developer client and fulfill contractual obligations
Project management of multidisciplinary team including biologists
Regulatory knowledge of federal and state environmental law
Engineer A, as principal of an environmental engineering firm, accepted a client request to prepare an analysis of property adjacent to a wetlands area for potential residential condominium development. This decision initiated Engineer A's professional obligations to both the developer client and the broader public interest.
Accept Development Analysis Engagement → Threatened Species Risk Identified
Engineer A, as principal of an environmental engineering firm, accepted a client request to prepare [the analysis], which necessitated assembling a team including a biologist whose work led to the identification of the threatened species risk
Without accepting the engagement, no team would have been assembled and the threatened species risk would not have been formally identified in this context; however, the ecological risk itself existed independently of the engagement
Assembly of a multidisciplinary team including a biologist
Biologist's professional obligation to identify environmental risks
Engineer A's decision to accept the engagement
Presence of threatened bird species on or near the project site
Engineer A (Principal, Environmental Engineering Firm)
Acceptance of engagement + deployment of qualified biologist + existence of threatened species on site
Addition of NSPE Code Section III.2.d. (January 2006) before Modification of NSPE Code Section III.2.d. (July 2007)
In January 2006, the NSPE Board of Directors approved a change ... Thereafter, in July 2007, the NSPE House of Delegates voted to modify the language.
Addition of NSPE Code Section III.2.d. (January 2006)
Modification of NSPE Code Section III.2.d. (July 2007)
Addition of NSPE Code Section III.2.d. before Modification of NSPE Code Section III.2.d.
In January 2006, the NSPE Board of Directors approved a change to the NSPE Code of Ethics to add Section III.2.d. ... Thereafter, in July 2007, the NSPE House of Delegates voted to modify the language in NSPE Code Section III.2.d.
Modification of NSPE Code Section III.2.d.
NSPE Board of Ethical Review (articulated across multiple BER opinions)
Agent-Trustee Distinction in Engineer-Client Relationships
Engineers, in the performance of their professional services, act as 'agents' or 'trustees' to their clients.
engineers as 'agents' or 'trustees' are expected to maintain the confidential nature of the information revealed to them in the course of rendering their professional services
NSPE Board of Ethical Review in explaining the basis for nondisclosure obligations under NSPE Code Section III.4.
Conceptual framework distinguishing engineer roles as agents or trustees of clients, used to ground the rationale for confidentiality obligations and the scope of engineer duties when handling sensitive client information
NSPE Board of Ethical Review Case No. 04-8
More recently in BER Case No. 04-8, Engineer A, an environmental engineer, performed wetland delineation services on the client's wetland site.
If appropriate steps were not taken by the client, Engineer A had an obligation to bring the matter to the attention of the appropriate authorities.
In its decision, the Board set forth an appropriate course of action for Engineer A concluding that Engineer A should contact the client and inquire about the actions the client had taken
NSPE Board of Ethical Review in analogical reasoning about environmental engineer disclosure and escalation obligations
Precedential case involving environmental engineer who discovered unpermitted wetland fill by a former client, establishing the appropriate course of action including client notification, legal compliance advisement, and escalation to authorities if client fails to act — applied analogically to the present case involving environmental disclosure obligations
NSPE Board of Ethical Review Case No. 89-7
as noted in BER Case No. 89-7, there are various rationales for the nondisclosure language contained in NSPE Code Section III.4.
in Case No. 89-7, the facts revealed that the client had confided in the engineer and may have relied upon the engineer to maintain the information in confidence
the engineer in BER Case No. 89-7 did not have any particular expertise in the technical areas (mechanical/electrical) involved in the matter at issue
NSPE Board of Ethical Review in analogical reasoning about confidentiality and disclosure obligations
Precedential case establishing rationale for nondisclosure of confidential client information and the conditions under which engineer caution is warranted before taking action, applied analogically to assess Engineer A's obligations in the present case
NSPE Board of Ethical Review Case No. 97-13
BER Case No. 97-13 appears to present this ethical dilemma starkly.
Similarly, in BER Case No. 97-13, the engineer's evaluation was based upon general surmise and speculation about the cause of the structural failure of the wall
in deciding that (1) it was ethical for Engineer A to retain the information in his engineering notes but not include it in the final written report as requested
NSPE Board of Ethical Review in analogical reasoning to distinguish the present case from prior precedent
Precedential case involving bridge inspection engineer who discovered apparent preexisting defective wall condition outside scope of work, establishing standards for balancing client confidentiality against public safety disclosure obligations and the role of professional competence and speculation in determining reporting duties
BER Case Nos. 89-7, 97-13, and 04-8 decisions before Addition of NSPE Code Section III.2.d. (January 2006)
It should be noted that these cases were decided prior to the addition of the language contained in NSPE Code Section III.2.d. quoted above.
BER Case Nos. 89-7, 97-13, and 04-8 decisions
BER Ethical Violation Conclusion Reached
Engineer A's conduct is formally adjudicated as a professional ethics violation; the BER conclusion establishes precedent for how similar cases should be handled; the professional standard for environmental disclosure in engineering reports is authoritatively clarified
At conclusion of BER case analysis, post-facto evaluation
The NSPE Board of Ethical Review concludes, after analyzing the facts against the Code of Ethics and prior BER cases, that Engineer A was obligated to include the environmental threat information in the written report submitted to the public authority. This conclusion constitutes an authoritative professional ethics judgment.
Biologist reports threat to bird species to Engineer A before Engineer A verbally informs developer client of concern
During the firm's analysis, one of the engineering firm's biologists reports to Engineer A that in his opinion, the condominium project could threaten a bird species... In subsequent discussions with the developer client, Engineer A verbally mentions the concern.
Biologist reports threat to bird species to Engineer A
Engineer A verbally informs developer client of concern
CausalLink_Accept Development Analysis En
CausalLink_Integrate Biologist's Threaten
CausalLink_Omit Finding from Written Repo
CausalLink_Verbally Disclose Concern to C
NSPE Board of Ethical Review (developed across multiple BER opinions)
Client Confidentiality vs. Public Safety Balancing Framework
engineers are placed in situations where they must balance the extent of their obligations to their employer or client with their obligations to protect the public health and safety
Engineer A acted reasonably under the circumstances by properly balancing the obligation of the engineer to be faithful to the client and not to disclose what might be considered by the client to be confidential information concerning the business affairs of a client without that client's consent and the obligation of the engineer to hold paramount the public health and safety
There does not appear to be any affirmative action on the part of the client to treat the information as confidential
NSPE Board of Ethical Review in structuring the ethical analysis of Engineer A's reporting obligations
Professional ethics framework applied to determine when Engineer A's environmental disclosure obligations override client confidentiality interests, including graduated analysis of client awareness, engineer competence, evidentiary certainty, and client action
As applied across BER Cases 89-7, 97-13, 04-8, and present case
Client Confidentiality vs. Public Safety Balancing Framework - Environmental Context
Professional ethics framework balancing client confidentiality against public safety and environmental protection obligations
In subsequent discussions with the developer client, Engineer A verbally mentions the concern, but Engineer A does not include the information in a written report that will be submitted to a public authority.
Engineer A in deciding whether to include the threatened species concern in the written report
Governs Engineer A's obligation to balance the developer client's interest in not disclosing adverse environmental findings against the paramount duty to protect public welfare and provide complete information to the public authority reviewing the development proposal.
Client Relationship Established Between Engineer A and Developer
From the developer's request for analysis through completion of the written report and submission to the public authority
Engineer A is a principal in an environmental engineering firm and is requested by a developer client to prepare an analysis of a piece of property adjacent to a wetlands area for potential development as a residential condominium
Engineer A's professional engagement with the developer client to prepare an environmental analysis
Not terminated within the described facts — the engagement is ongoing
Developer client requests Engineer A's firm to prepare an analysis of the property for potential residential condominium development
Client requests Engineer A omit information from final report (BER Case No. 97-13) before Engineer A retains information in engineering notes but omits from final report
Engineer A stated that he would retain the information for his engineering notes but not include it in the final report, as requested.
Client requests Engineer A omit information from final report (BER Case No. 97-13)
Engineer A retains information in engineering notes but omits from final report
Competence-Confirmed Environmental Finding Omission Prohibition — Engineer A Biologist Report
The firm biologist's report to Engineer A constituted a competence-confirmed finding within the firm's environmental engineering domain, distinguishing it from the speculative structural observation in BER Case 97-13 and triggering the full written disclosure obligation.
Competence-Differentiated Speculation vs. Confirmed Finding State
Because the threatened species finding was a technically confirmed finding made within domain competence by the firm's biologist — rather than a speculative observation outside competence — Engineer A was constrained from treating the finding as insufficiently confirmed to warrant inclusion in the written report, and was prohibited from omitting it on the basis that it was merely speculative or outside the engineer's own personal competence.
NSPE Code of Ethics Section II.3.a; professional report completeness standards; BER Case 97-13 (speculation vs. confirmed finding distinction)
one of the engineering firm's biologists reports to Engineer A that in his opinion, the condominium project could threaten a bird species that inhabits the adjacent protected wetlands area
At the time of finalizing the written environmental report
The bird species is not an 'endangered species,' but it is considered a 'threatened species' by federal and state environmental regulators
It was unethical for Engineer A to not include the information about the threat to the bird species in a written report that will be submitted to a public authority that is considering the developer’s proposal.
Beyond the Board's finding that omitting the threatened species information from the written report was unethical, the verbal disclosure to the developer client alone was categorically insufficient to satisfy Engineer A's professional obligations to the public authority. The public authority is an independent decision-making body that relies on the written report as its primary evidentiary basis for evaluating the development proposal. A private verbal communication to the client — who has an obvious financial interest in a favorable outcome — cannot substitute for written disclosure in the official record, because the client has no obligation to relay that information to the authority and every incentive not to do so. Engineer A's verbal mention therefore did not discharge any portion of the reporting obligation owed to the public authority; it merely created a private acknowledgment between parties with aligned commercial interests while leaving the regulatory decision-maker uninformed. The ethical violation is thus not merely one of omission from a document but of structural misdirection: the only party who received the material finding was the one party whose interest was served by its suppression.
The Board's conclusion is most securely grounded in the mandatory completeness and truthfulness standard of NSPE Code Section II.3.a. rather than in the encouraged sustainable development provision of Section III.2.d. This distinction carries significant analytical weight. Section III.2.d., as amended in July 2007, uses aspirational language — engineers 'are encouraged' to adhere to sustainable development principles — and therefore creates a reinforcing but non-binding obligation. Section II.3.a., by contrast, imposes a strict duty: engineers 'shall be objective and truthful in professional reports.' A written report submitted to a public authority that omits a material environmental finding identified by a domain-competent biologist within the same firm is not objective and truthful in the sense required by Section II.3.a., regardless of whether sustainable development principles are separately invoked. Relying primarily on Section III.2.d. would understate the strength of the violation and create a misleading impression that the reporting obligation is merely aspirational. The Board's conclusion should therefore be understood as resting on a mandatory duty, with Section III.2.d. serving only as a secondary, reinforcing consideration that underscores the environmental significance of the omitted finding.
The presence of a domain-competent biologist within Engineer A's own firm is a decisive factor that distinguishes this case from BER Case No. 97-13 and forecloses any scope-limitation or competence-gap defense. In BER 97-13, the engineer's speculative visual observation of a potential structural defect was made outside the engineer's area of competence and outside the defined scope of the sub-consultancy engagement, and a confidentiality instruction had been explicitly issued by the client. In the present case, none of those mitigating conditions exist: the threatened species finding was produced by a qualified biologist employed within Engineer A's firm, it falls squarely within the subject matter of an environmental analysis engagement, and no confidentiality instruction was given. The finding is therefore not speculative or outside competence — it is a professionally grounded opinion from an in-house specialist acting within the scope of the engagement. Because the competence gap and scope limitation that justified omission in BER 97-13 are both absent here, Engineer A had an affirmative obligation to include the biologist's finding in the written report. The absence of an explicit confidentiality instruction further removes the only remaining defense that was available in BER 97-13, leaving Engineer A without any principled basis for the omission.
The threatened-versus-endangered regulatory classification of the bird species is ethically irrelevant to Engineer A's completeness obligation under Section II.3.a. The NSPE Code's truthfulness and objectivity standard does not condition the duty to report material findings on whether those findings meet a particular regulatory severity threshold. A threatened species designation under federal and state environmental law is itself a formal regulatory classification that triggers specific legal protections and is precisely the kind of information a public authority evaluating a development proposal adjacent to protected wetlands would need to make an informed decision. To treat the threatened classification as a lesser concern warranting omission would be to substitute Engineer A's own policy judgment — or the client's commercial preference — for the public authority's right to evaluate all material environmental information. Furthermore, the ethical obligation to be objective and truthful in reports submitted to public authorities is not calibrated to the degree of harm; it is a categorical duty of completeness. The fact that the species had not yet crossed the threshold to endangered status does not diminish the materiality of the finding to the regulatory review process.
Engineer A's acceptance of an environmental analysis engagement for a site adjacent to protected wetlands itself created an affirmative and non-waivable obligation to report all material environmental findings in the written deliverable submitted to the public authority, regardless of client preference. An environmental engineering firm principal who accepts an engagement whose explicit purpose is to inform a regulatory body's decision about a development proposal cannot subsequently treat that report as a client advocacy document from which inconvenient findings may be selectively omitted. The engagement's regulatory context — a written report submitted to a public authority considering a developer's proposal — transforms the report from a private client deliverable into a quasi-public document on which a governmental decision-maker will rely. This context activates the paramount public welfare obligation under the NSPE Code and the objective truthfulness duty under Section II.3.a. simultaneously. Engineer A's role as a faithful agent of the developer client is bounded by these obligations and does not extend to curating the evidentiary record presented to a regulatory authority. Had Engineer A been unwilling to include all material findings, the ethically consistent course would have been to decline the engagement or to withdraw upon receiving the biologist's report rather than to submit an incomplete document to the public authority.
In response to Q101: Engineer A's verbal disclosure to the developer client does not satisfy, even in part, the ethical obligation to report the threatened species finding to the public authority. The two communications serve entirely different functions and reach entirely different audiences. The verbal mention to the developer client is a client-service communication; the written report submitted to the public authority is a professional representation on which a regulatory body will rely to make a decision affecting the public. NSPE Code Section II.3.a. requires that engineers be objective and truthful in professional reports submitted to public authorities — an obligation that runs directly to the integrity of the report itself, not merely to whether the engineer has privately acknowledged the finding to someone. The omission from the written report is therefore an independent ethical violation that stands regardless of what was communicated privately. Verbal-only disclosure to the client cannot cure an incomplete written submission to a public authority, because the public authority never receives the benefit of that verbal communication. The ethical obligation is not discharged by telling the party with the strongest interest in suppressing the information; it is discharged only by ensuring the party responsible for protecting the public interest actually receives it in the document on which it will rely.
In response to Q102: The biologist's finding occupies a position closer to a confirmed technical fact than to a mere speculative opinion, and that characterization materially strengthens Engineer A's obligation to include it in the written report. The biologist is a credentialed specialist within Engineer A's own firm, reporting through proper internal channels on a matter squarely within his domain competence. His conclusion — that the condominium project could threaten a bird species inhabiting the adjacent protected wetlands — is a professional judgment grounded in direct field observation and biological expertise, not a layperson's guess. This distinguishes the present case sharply from BER Case No. 97-13, where Engineer A's structural observation was a speculative visual impression made outside the engineer's area of competence. Here, the firm has in-house biological expertise, the biologist applied that expertise to the specific site, and the finding is corroborated by the federal and state regulatory classification of the species as 'threatened.' The fact that the biologist used the word 'could' introduces some epistemic qualification, but professional environmental assessments routinely express risk in probabilistic terms; that framing does not reduce a competence-confirmed finding to mere conjecture. Under NSPE Code Section II.3.a., Engineer A is obligated to report findings objectively and completely, and a competence-confirmed risk finding from an in-house specialist is precisely the kind of material information that a public authority needs to make an informed regulatory decision.
In response to Q103: Engineer A was ethically obligated to advise the developer client that the threatened species finding would be included in the written report before submission, as a matter of professional courtesy and faithful agency — but that obligation to notify the client does not give the client veto power over the report's content. If the developer client, upon being so advised, had explicitly instructed Engineer A to omit the finding, that instruction would not have provided an ethical defense for omission. The NSPE Code's faithful agent obligation operates within ethical limits; it does not authorize an engineer to falsify or materially incomplete a professional report submitted to a public authority at a client's direction. In that scenario, Engineer A would have faced a clear conflict between client instruction and the paramount obligation to protect the public under NSPE Code Sections II.3.a. and I.3. The ethically required course of action would have been to include the finding over the client's objection, to withdraw from the engagement if the client made inclusion a condition of continued service, or — at minimum — to refuse to submit an incomplete report to the public authority. The absence of any explicit confidentiality instruction in the present case, as noted under the Confidentiality Non-Invocation by Client Removes Confidentiality Defense principle, actually makes Engineer A's omission harder to justify, not easier: there was no client instruction to resist, only Engineer A's own choice to omit material information.
In response to Q104: The 'threatened' rather than 'endangered' regulatory classification does not materially reduce Engineer A's ethical obligation to disclose the finding in the written report, and the regulatory classification threshold is largely irrelevant to the completeness obligation under NSPE Code Section II.3.a. The Code's requirement that engineers be objective and truthful in professional reports does not contain a carve-out for findings that fall below a particular regulatory severity threshold. The relevant question under Section II.3.a. is whether the omitted information is material to the public authority's decision — and a finding that a proposed development could threaten a bird species inhabiting adjacent protected wetlands is plainly material to a regulatory body reviewing that development proposal, regardless of whether the species is classified as threatened or endangered. The threatened classification is itself a formal federal and state regulatory determination that the species faces a significant risk of harm; it is not a finding of minimal concern. Moreover, the ethical obligation to report is grounded in the engineer's duty of objective completeness to the public authority, not in the engineer's independent assessment of whether the regulatory stakes are high enough to warrant disclosure. Allowing engineers to filter material environmental findings based on their own judgment about regulatory classification thresholds would undermine the integrity of the public review process that the reporting obligation is designed to protect.
In response to Q201: The faithful agent obligation and the public welfare paramount obligation do not conflict in this case in any way that would justify Engineer A's omission — rather, the faithful agent obligation simply reaches its ethical boundary at the point where serving the client's interest requires submitting a materially incomplete professional report to a public authority. The NSPE Code has never treated faithful agency as an unlimited duty; it is explicitly bounded by the engineer's overriding obligation to hold public safety and welfare paramount. The line is crossed when the engineer's report to a public authority omits information that is material to that authority's regulatory decision and that the authority would need in order to protect the public interest. In the present case, the threatened species finding is precisely such information: it is material, it is competence-confirmed, it is directly relevant to the development proposal under review, and its omission leaves the public authority unable to fully evaluate the environmental consequences of approving the project. At that point, the faithful agent obligation does not compete with the public welfare obligation — it simply yields to it. Engineer A could have served the developer client faithfully in many ways: by advising the client of the finding, by explaining the regulatory implications, by helping the client develop a mitigation strategy. What Engineer A could not ethically do was submit an incomplete report to the public authority in order to improve the client's prospects for approval.
In response to Q202: The confidentiality constraint under NSPE Code Section III.4. does not provide Engineer A with a defense for the omission in the present case, because no confidentiality instruction was given by the developer client. The Confidentiality Non-Invocation by Client Removes Confidentiality Defense principle is dispositive on this point: confidentiality is a protection that must be affirmatively invoked by the client; it is not a default shield that engineers may apply unilaterally to suppress inconvenient findings. Even if the developer client had invoked confidentiality, the more difficult question would arise of whether a threatened species finding — a matter of direct relevance to a public regulatory proceeding — constitutes the kind of 'confidential business information' that Section III.4. is designed to protect. The better view is that it does not, because the confidentiality provision is aimed at protecting proprietary business information, trade secrets, and sensitive commercial data, not at enabling clients to conceal material environmental risks from the regulatory bodies charged with protecting the public. Where a finding is both material to a public authority's decision and relevant to the protection of a regulated natural resource, the public safety and regulatory disclosure obligations override any confidentiality claim the client might assert. The absence of any confidentiality instruction in the present case makes this analysis straightforward: Engineer A had no confidentiality basis whatsoever for the omission.
In response to Q203: The scope limitation defense that was accepted in BER Case No. 97-13 does not transfer to the present case, and the critical distinguishing variable is the presence of in-house specialist expertise. In BER 97-13, Engineer A was a bridge sub-consultant who made a speculative visual observation about a potential wall defect that fell outside the scope of the engagement and outside Engineer A's own structural engineering competence. The combination of scope limitation and competence gap together justified the conclusion that Engineer A was not obligated to include that observation in the final report. In the present case, neither condition is met. The threatened species finding was made by a biologist who is a member of Engineer A's own firm, working within the scope of an environmental analysis engagement for a site adjacent to protected wetlands — an environmental assessment is precisely the kind of engagement where biological habitat findings are within scope. The firm's in-house biological expertise means that the finding is not a speculative observation by an unqualified observer but a professional judgment by a domain-competent specialist. The Expertise Calibration Applied to Present Case vs BER 97-13 principle correctly identifies that the presence of in-house specialist expertise eliminates the competence gap that justified omission in BER 97-13. When an engineer's own firm has the expertise to make a finding and that finding is made within the scope of the engagement, the scope limitation defense is unavailable and the completeness obligation under Section II.3.a. applies in full.
In response to Q204: The Board's conclusion rests most securely on the mandatory completeness standard under NSPE Code Section II.3.a. rather than on the encouraged sustainable development provision under Section III.2.d., and the distinction between these two provisions matters significantly for the strength and clarity of the ethical analysis. Section II.3.a. imposes a mandatory duty: engineers shall be objective and truthful in professional reports. The omission of a competence-confirmed threatened species finding from a written report submitted to a public authority is a direct violation of that mandatory standard, regardless of any other provision. Section III.2.d., by contrast, uses the word 'encouraged' — it is an aspirational provision that reinforces the reporting obligation but does not independently create a mandatory duty. Relying primarily on Section III.2.d. to ground the violation conclusion would understate the strength of Engineer A's obligation and could suggest that the duty to report environmental findings is merely aspirational rather than mandatory. The correct analytical structure is to treat Section II.3.a. as the primary and sufficient basis for the violation finding, with Section III.2.d. serving as a reinforcing consideration that reflects the Code's broader commitment to environmental stewardship. This tiered structure — mandatory duty violated, aspirational provision also implicated — produces a stronger and more defensible conclusion than one that blends the two provisions without distinguishing their normative weight.
In response to Q301: From a deontological perspective, Engineer A did not fulfill the categorical duty of truthfulness and completeness by verbally disclosing the threatened species risk to the developer client alone. A deontological analysis grounded in Kantian ethics would ask whether Engineer A's conduct could be universalized as a maxim: if all engineers preparing reports for public authorities were permitted to omit material findings from written submissions so long as they mentioned those findings verbally to the client, the institution of professional reporting to public authorities would be rendered meaningless. The public authority's reliance on the written report is not incidental — it is the entire purpose of the submission. The duty of objective and truthful professional reporting under Section II.3.a. is owed to every party who relies on the report in their official capacity, not merely to the party who commissioned it. A deontological framework would further recognize that the developer client and the public authority are not interchangeable recipients: the client has a direct financial interest in the outcome of the regulatory review, while the public authority is the institutional representative of the public interest. Disclosing only to the party with the strongest incentive to suppress the information, while withholding it from the party charged with protecting the public, inverts the engineer's duty structure. The categorical duty of truthfulness in professional representations requires written disclosure to the public authority as an independent and non-delegable obligation.
In response to Q302: From a consequentialist perspective, the aggregate harm produced by Engineer A's omission substantially outweighs any benefit conferred on the developer client. The harms are multiple and compound: the threatened bird species and its protected wetlands habitat face development pressure without the regulatory protection that a complete disclosure would have triggered; the public authority is deprived of material information needed to make an informed regulatory decision, corrupting the integrity of the public review process; and the broader public interest in accurate environmental assessment of development proposals adjacent to protected areas is undermined. The benefit to the developer client — an improved prospect of regulatory approval in the short term — is both narrow in scope and ethically tainted, because it is achieved by withholding information from the regulatory body rather than by demonstrating that the project can proceed without unacceptable environmental harm. A consequentialist analysis would also account for systemic effects: if engineers routinely omitted inconvenient environmental findings from public authority reports, the cumulative harm to protected ecosystems and to the integrity of environmental regulation would be severe. The harm to the threatened species and the wetlands ecosystem is not easily reversible once development proceeds, while the harm to the developer client from inclusion of the finding — delay, redesign, or denial — is a legitimate regulatory consequence rather than an unjust harm. The consequentialist calculus therefore strongly supports the conclusion that Engineer A's omission was unethical.
In response to Q303: From a virtue ethics perspective, Engineer A's conduct falls short of the professional character expected of a principal in an environmental engineering firm. Virtue ethics asks not merely whether a rule was violated but whether the agent demonstrated the character traits — integrity, courage, honesty, and stewardship — that define a trustworthy professional. A principal in an environmental engineering firm occupies a position of particular responsibility: the firm's entire professional purpose is to provide objective environmental analysis that informs decisions affecting natural resources and the public. Choosing verbal-only disclosure to the client, while submitting a written report to a public authority that omits a material environmental finding, reflects a failure of professional courage — the willingness to deliver unwelcome findings to clients and to stand behind those findings in official submissions. It also reflects a failure of environmental stewardship, which is a core virtue for professionals in this field. The virtue of integrity requires consistency between what the engineer knows, what the engineer says privately, and what the engineer represents officially. Engineer A knew of the threatened species risk, mentioned it privately to the client, and then omitted it from the official record — a pattern that is inconsistent with the integrated professional character that virtue ethics demands. A trustworthy environmental professional would have included the finding in the written report, advised the client of its inclusion, and helped the client navigate the regulatory implications rather than shielding the client from them.
In response to Q304: The NSPE Code does create a tiered obligation structure distinguishing mandatory duties from encouraged provisions, and Engineer A's omission constitutes a violation of both tiers simultaneously — though the violation of the mandatory duty under Section II.3.a. is the primary and sufficient basis for the ethical finding. Section II.3.a.'s requirement that engineers be objective and truthful in professional reports is a strict duty: it admits no exception based on client preference, scope limitation, or regulatory classification of the subject matter. Engineer A's omission of the threatened species finding from the written report submitted to the public authority is a direct and unambiguous violation of this mandatory standard. Section III.2.d.'s encouraged provision on sustainable development operates at a different normative level: it reflects the Code's aspirational commitment to environmental stewardship and reinforces the reporting obligation in the environmental context, but it does not independently create a mandatory reporting duty. The significance of the tiered structure is that it prevents the ethical analysis from being weakened by the argument that Section III.2.d.'s 'encouraged' language renders the sustainable development obligation merely optional. That argument would be correct as applied to Section III.2.d. in isolation, but it is irrelevant to the Section II.3.a. violation, which is mandatory and independently sufficient. Engineer A's omission is therefore simultaneously a violation of a strict duty and a failure to meet an encouraged aspiration — but the strict duty violation is what makes the conduct unethical, and the encouraged provision adds contextual reinforcement rather than independent normative weight.
In response to Q401: If Engineer A had included the threatened species finding in the written report and proactively notified the developer client before submission, the developer client would have had no legitimate basis to object to the inclusion. The client's interest in a favorable regulatory outcome does not create a right to control the content of a professional report submitted to a public authority; the engineer's obligation of objective completeness under Section II.3.a. runs to the integrity of the report itself, not to the client's preferences about its contents. The client could legitimately have requested that Engineer A explain the finding, contextualize its significance, or identify potential mitigation measures — but not that the finding be omitted. As to the effect on the public authority's decision: inclusion of the finding would have placed the threatened species risk squarely before the regulatory body, which would then have been obligated to consider it under applicable federal and state environmental regulatory frameworks. The public authority might have required additional environmental review, imposed conditions on approval, required mitigation measures, or denied the proposal. Any of those outcomes would have been a legitimate exercise of the regulatory process functioning as designed — which is precisely the outcome that Engineer A's omission prevented. The counterfactual therefore illustrates that Engineer A's omission did not merely violate a professional standard in the abstract; it materially impaired the public authority's ability to exercise its regulatory function.
In response to Q402: If the bird species had been classified as endangered rather than threatened, Engineer A's ethical obligation to include the finding in the written report would not have been meaningfully stronger under the NSPE Code, because the Code's completeness obligation does not scale with regulatory severity classifications. The obligation under Section II.3.a. to be objective and truthful in professional reports is binary — it either applies or it does not — and it applies whenever a material finding exists that a public authority would need to make an informed decision. A threatened species finding satisfies that materiality threshold. The endangered-versus-threatened distinction carries significant weight in the regulatory and legal context — it triggers different statutory protections and enforcement mechanisms under the Endangered Species Act and analogous state frameworks — but it does not carry legitimate moral weight in determining the scope of the engineer's disclosure duty under the NSPE Code. An engineer who would include an endangered species finding but omit a threatened species finding is applying a regulatory classification threshold as a proxy for the completeness obligation, which the Code does not authorize. The ethical obligation to report material environmental findings to public authorities is grounded in the engineer's duty of objective completeness and public welfare paramountcy, not in the regulatory severity of the finding. The threatened classification is itself a formal determination of significant risk; treating it as below the disclosure threshold would be inconsistent with both the letter and the spirit of the Code.
In response to Q403: If the developer client had explicitly instructed Engineer A in writing not to include the threatened species finding in the public authority report — mirroring the confidentiality instruction in BER Case No. 97-13 — that instruction would not have provided Engineer A with an ethical defense for the omission in the present environmental context, and the analysis differs from BER 97-13 in a critical respect. In BER 97-13, the confidentiality instruction was given in the context of a speculative structural observation made outside the engineer's competence, and the finding was not independently confirmed by a domain-competent specialist within the firm. In the present case, the finding is competence-confirmed by an in-house biologist, it is directly relevant to the subject matter of the engagement, and it concerns a regulated natural resource — a threatened species in adjacent protected wetlands — that is the subject of federal and state environmental regulatory frameworks. A confidentiality instruction cannot ethically authorize an engineer to submit a materially incomplete report to a public authority on a matter of direct regulatory concern. The NSPE Code's confidentiality provision under Section III.4. protects legitimate business information; it does not authorize the suppression of material environmental findings from regulatory submissions. Where the finding is both within the scope of the engagement and relevant to the protection of a regulated natural resource, the public safety and regulatory disclosure obligations override the client's confidentiality instruction. Engineer A would have been required to include the finding, withdraw from the engagement, or — at minimum — refuse to submit the incomplete report.
In response to Q404: Engineer A's acceptance of the engagement to prepare an environmental analysis of a site adjacent to protected wetlands did create an affirmative obligation to report all material environmental findings regardless of client preference, and declining the engagement would not have better served the public interest than accepting it and reporting completely. The engagement itself — an environmental analysis for a development proposal adjacent to protected wetlands — is precisely the kind of professional service that the public interest requires to be performed competently and completely. The public authority's ability to make an informed regulatory decision depends on engineers accepting such engagements and performing them with integrity. If Engineer A had declined the engagement, the developer might have retained a less scrupulous firm, or might have proceeded without a thorough environmental analysis at all. The public interest is better served by a competent environmental engineer accepting the engagement and reporting all material findings than by that engineer declining and leaving the field to others. However, acceptance of the engagement carries with it the full weight of the completeness obligation under Section II.3.a.: by agreeing to prepare an environmental analysis for submission to a public authority, Engineer A implicitly represented that the analysis would be objective and complete. The acceptance of the engagement therefore did not merely permit Engineer A to report the threatened species finding — it obligated Engineer A to do so. The ethical failure was not in accepting the engagement but in failing to honor the completeness obligation that acceptance entailed.
The tension between the Faithful Agent Obligation Within Ethical Limits Applied to Developer Client Relationship and the Public Welfare Paramount Invoked Against Engineer A Omission was resolved decisively in favor of public welfare, but the resolution was not absolute. Engineer A retained a legitimate duty to serve the developer client's interests — including, for example, framing the threatened species finding accurately rather than alarmingly, and advising the client before submission so the client could respond to the finding. What Engineer A could not do was suppress a material environmental finding from a written report submitted to a public authority whose decision-making depended on that report's completeness. The case teaches that the faithful agent obligation functions as a bounded duty: it governs how an engineer serves a client, not whether the engineer may omit safety-relevant or environmentally significant facts from official documents. The boundary is crossed not when the engineer discloses an unfavorable finding, but when the engineer withholds it from a party — here, the public authority — whose legitimate regulatory function requires access to it. Client loyalty, in other words, cannot be exercised at the expense of the integrity of a public regulatory process.
The interaction between the Confidentiality Non-Invocation by Client Removes Confidentiality Defense principle and the Confidential Client Information Constraint reveals an important asymmetry in how confidentiality operates in engineering ethics: confidentiality is a shield the client must affirmatively raise, not a default protection that engineers may invoke on the client's behalf to justify omissions from public documents. Because the developer client gave no explicit confidentiality instruction regarding the threatened species finding, Engineer A had no ethical basis to treat the finding as protected information. More fundamentally, even if confidentiality had been invoked, the Confidentiality Non-Bar to Safety-Critical Regulatory Disclosure Constraint would have substantially limited its force in this context: the written report was destined for a public authority conducting a regulatory review, and the threatened species finding was directly material to that review. The case therefore teaches that confidentiality and completeness obligations are not symmetrical — confidentiality requires an affirmative client act to be operative, while the completeness obligation under Section II.3.a. is self-executing and applies to every professional report submitted to a public body, regardless of client preference.
The apparent conflict between the Scope Limitation Defense Rejected for Environmental Finding principle and the Expertise Calibration Applied to Present Case vs BER 97-13 principle is resolved by recognizing that these two principles operate on different axes and are not genuinely in tension when properly understood. In BER Case No. 97-13, two independent factors combined to justify omission of the structural wall observation: the finding was speculative and outside the engineer's domain competence, and a confidentiality instruction had been given. In the present case, neither factor is present. The biologist's threatened species finding was made within the firm's domain competence — Engineer A's own firm employed the biologist — and no confidentiality instruction was given. The Expertise Calibration principle therefore does not create a defense for Engineer A; rather, it confirms that the BER 97-13 precedent is inapplicable precisely because the competence gap that justified omission there does not exist here. The case teaches that scope limitation and competence-based omission defenses are narrow and fact-specific: they require both a genuine competence gap and, ideally, an absence of in-house specialist support. When an engineer's firm has the relevant expertise and the finding is confirmed rather than speculative, the completeness obligation under Section II.3.a. applies with full force, and no scope limitation argument can override it.
The relationship between the Sustainable Development Obligation Applied to Threatened Species Finding under NSPE Code Section III.2.d. and the Objective Completeness Obligation Under NSPE Code Section II.3.a. reveals a critical structural feature of the NSPE Code's tiered obligation architecture: mandatory duties and encouraged aspirations can point in the same direction, but they carry different normative weights and should not be conflated in ethical analysis. The Board's conclusion that Engineer A acted unethically rests most securely on the mandatory completeness and truthfulness standard of Section II.3.a., which admits no exception for client preference or report scope. The sustainable development provision of Section III.2.d., while reinforcing the conclusion, is an encouraged rather than mandatory standard and therefore cannot independently sustain a finding of ethical violation. The case teaches that when a mandatory provision and an encouraged provision both support the same conclusion, the ethical analysis should be anchored to the mandatory provision and the encouraged provision treated as corroborating context. Relying primarily on the aspirational provision would both overstate its normative force and understate the strength of the mandatory duty, potentially creating a misleading precedent that the sustainable development obligation carries the same obligatory weight as the truthfulness and completeness requirements.
Confidential Client Information Constraint — Engineer A Developer Environmental Analysis
Engineer A faced tension between the duty of confidentiality to the developer client and the obligation to include the threatened species finding in the public authority report. The confidentiality constraint was defeasible given the public welfare stakes.
Confidential Client Information Constraint
Engineer A's general duty of confidentiality to the developer client was operative but was overridden by the paramount obligation to disclose the threatened species finding in the written report to the public authority — establishing that the confidentiality constraint was defeasible in the face of the public welfare obligation when the confirmed environmental finding was material to the public authority's regulatory decision.
NSPE Code of Ethics Section III.4 (confidentiality); NSPE Code Section I.1 (public welfare paramount); BER Case 89-7 (confidentiality rationale)
Engineer A is a principal in an environmental engineering firm and is requested by a developer client to prepare an analysis
Throughout the environmental analysis engagement
Engineer A verbally mentions the concern, but Engineer A does not include the information in a written report that will be submitted to a public authority
Confidentiality Non-Bar to Safety-Critical Regulatory Disclosure Constraint — Engineer A Threatened Species
The developer client's implicit or explicit preference for omission of the threatened species finding could not be justified by confidentiality obligations given the public authority's regulatory role and the ecological welfare stakes.
Confidentiality Non-Bar to Safety-Critical Regulatory Disclosure Constraint
Engineer A's duty of confidentiality to the developer client did not bar inclusion of the threatened species finding in the written report submitted to the public authority — because the public authority's regulatory decision-making function and the ecological welfare of the protected wetlands created a paramount disclosure obligation that the confidentiality duty could not override, establishing that the NSPE Code confidentiality obligation is defeasible when confirmed environmental findings material to public welfare are at stake.
NSPE Code of Ethics Section III.4 (confidentiality, defeasible); NSPE Code Section I.1 (public welfare paramount); BER Case 04-8 (environmental disclosure precedent)
Engineer A does not include the information in a written report that will be submitted to a public authority that is considering the developer's proposal
At the time of preparing and submitting the written environmental report to the public authority
the condominium project could threaten a bird species that inhabits the adjacent protected wetlands area
Was Engineer A ethically required to include the biologist's threatened species finding in the written report submitted to the public authority, given that Engineer A verbally mentioned the concern to the developer client but omitted it from the official written submission?
Whether Engineer A was obligated to include the firm biologist's threatened species finding in the written environmental report submitted to the public authority, or whether verbal disclosure to the developer client and/or scope/classification considerations justified omission.
Include the biologist's threatened species finding in the written report as a material environmental risk finding, advise the developer client of its inclusion before submission, and frame the finding accurately in probabilistic terms consistent with the biologist's professional judgment
Omit the threatened species finding from the written report on the basis that the species is classified as 'threatened' rather than 'endangered' and the biologist's opinion is probabilistic rather than confirmed, while relying on the verbal disclosure to the developer client as sufficient notification of the concern
Omit the threatened species finding from the written report on scope-limitation grounds — treating it as an incidental observation outside the contracted environmental analysis — while recommending in the report that the client commission a separate biological survey before the public authority's final decision
Should Engineer A include the in-house biologist's threatened species finding in the written report submitted to the public authority, given that Engineer A verbally disclosed the concern to the developer client but the client has not explicitly invoked confidentiality or instructed omission?
Engineer A Environmental Principal: Obligation to include the biologist's threatened species finding in the written report submitted to the public authority, versus omitting it after verbal disclosure to the developer client.
Include the biologist's threatened species finding in the written report submitted to the public authority, and notify the developer client in advance of submission that the finding will appear in the report
Omit the threatened species finding from the written report on the ground that it falls outside the contracted scope of the environmental analysis, while preserving the verbal disclosure to the client as the record of Engineer A's professional notification
Include the biologist's finding in the written report as a qualified professional opinion using probabilistic framing (e.g., 'could threaten'), appending a scope disclaimer that biological habitat assessment was incidental to the primary engagement, and advising the client that the disclaimer limits the finding's evidentiary weight before the authority
Does Engineer A's verbal disclosure to the developer client discharge any part of the reporting obligation owed to the public authority, and can Engineer A invoke the BER 97-13 scope-limitation or competence-gap precedent to justify omitting the biologist's finding from the written report?
Engineer A Environmental Principal: Whether verbal disclosure of the threatened species finding to the developer client satisfies any portion of the ethical obligation owed to the public authority, and whether the BER 97-13 scope-limitation and competence-gap defense is available to justify omission from the written report.
Include the biologist's finding in the written report submitted to the public authority, treating the verbal client disclosure as a courtesy notification that does not substitute for written disclosure in the official record
Treat the verbal disclosure to the developer client as satisfying Engineer A's notification obligation, and omit the finding from the written report on the ground that the biologist's probabilistic conclusion ('could threaten') is a speculative professional opinion analogous to the out-of-scope structural observation in BER 97-13 and therefore not required to appear in the deliverable
Withdraw from the engagement rather than submit a written report that either omits the finding (violating Section II.3.a.) or includes it over the client's apparent preference (risking the client relationship), thereby avoiding personal responsibility for an incomplete public submission while preserving the client's option to retain another firm
When the developer client's commercial interest in a favorable regulatory outcome conflicts with Engineer A's obligation to submit a complete and truthful written report to the public authority, does the faithful agent obligation authorize Engineer A to omit the threatened species finding, and was Engineer A required to advise the client in advance that the finding would be included before submitting the report?
Engineer A Environmental Principal: Whether the faithful agent obligation to the developer client conflicts with the paramount public welfare obligation when the client's commercial interest in a favorable report requires omitting a material environmental finding from a quasi-public regulatory document, and how the client-first confrontation norm interacts with the completeness duty.
Notify the developer client in advance that the threatened species finding will be included in the written report, include the finding in the report as submitted to the public authority, and offer to help the client develop a regulatory response or mitigation strategy
Treat the developer client as the primary principal whose commercial interests govern the report's scope, omit the finding on the ground that the faithful agent obligation authorizes deference to the client's evident preference for a favorable report, and rely on the client's own regulatory counsel to determine whether the finding must be separately disclosed to the authority
Advise the developer client of the finding and give the client a defined period to voluntarily supplement the submission to the public authority with the threatened species information before Engineer A takes independent action, treating the client-first confrontation norm as a prerequisite step that, if the client fails to act, then obligates Engineer A to include the finding directly or withdraw from the engagement
Did Engineer A's verbal mention of the threatened species concern to the developer client discharge any part of the professional obligation to ensure the public authority received complete environmental information, or does the omission from the written report constitute a self-standing ethical violation independent of the private client communication?
Whether Engineer A's verbal disclosure of the threatened species concern to the developer client satisfied any portion of the ethical obligation owed to the public authority, or whether the submission of an incomplete written report to the public authority constitutes an independent ethical violation regardless of what was privately communicated to the client.
Include the threatened species finding in the written report submitted to the public authority and separately notify the developer client of its inclusion before submission, treating the written report as the authoritative professional representation to the regulatory body
Treat the verbal disclosure to the developer client as satisfying the notification obligation, relying on the client-first confrontation norm to shift responsibility for public disclosure to the developer, and submit the written report without the finding pending the client's response
Append a written addendum to the client file documenting the verbal disclosure and the biologist's finding, without including the finding in the body of the written report submitted to the public authority, on the basis that the addendum preserves the professional record while respecting the client's interest in controlling the regulatory submission
Did Engineer A's faithful agent obligation to the developer client provide any legitimate basis for omitting the threatened species finding from the written report submitted to the public authority, or did the engagement's regulatory purpose and the public welfare paramount obligation render the faithful agent duty inapplicable to the content of the official submission?
Whether the faithful agent obligation to the developer client — including the client's implicit interest in a favorable regulatory report — conflicts with the public welfare paramount obligation and the objective completeness duty, and at what point client loyalty crosses into an impermissible curating of the evidentiary record presented to a regulatory authority.
Include the threatened species finding in the written report as a matter of mandatory completeness, advise the developer client of its inclusion before submission, and offer to help the client develop a regulatory response or mitigation strategy — treating faithful agency as governing the manner of client service rather than the content of the official submission
Omit the threatened species finding from the written report in deference to the developer client's implicit commercial interest in a favorable regulatory outcome, treating the faithful agent obligation as authorizing the engineer to present the analysis in the light most favorable to the client absent an explicit instruction to include adverse findings
Withdraw from the engagement upon receiving the biologist's threatened species finding, on the basis that the client's anticipated preference for omission creates an irreconcilable conflict between the faithful agent obligation and the mandatory completeness duty, rather than submitting either a complete or an incomplete report
Should Engineer A include the biologist's threatened species finding in the written report submitted to the public authority, given that Engineer A has already verbally disclosed the concern to the developer client who has not explicitly invoked confidentiality?
Engineer A's obligation to include the threatened species finding in the written report submitted to the public authority, and whether verbal disclosure to the developer client satisfies any portion of that obligation
Include the biologist's threatened species finding in the written report submitted to the public authority, and proactively notify the developer client of its inclusion before submission so the client can prepare a response
Treat the verbal disclosure to the developer client as satisfying the notification obligation, and omit the finding from the written report on the basis that the client — having been informed — bears responsibility for deciding whether to relay the information to the public authority
Append the biologist's finding as a separate advisory memorandum transmitted directly to the public authority outside the main written report, thereby preserving the report's contracted scope while ensuring the authority receives the material information
Given that Engineer A's own firm employs the biologist who produced the threatened species finding within the scope of an environmental analysis engagement, should Engineer A treat the finding as a professionally grounded obligation to report rather than as an incidental observation outside the contracted scope?
Whether the presence of an in-house domain-competent biologist within Engineer A's firm eliminates the scope-limitation and competence-gap defenses available under BER 97-13, thereby creating an affirmative obligation to integrate the threatened species finding into the written report
Integrate the biologist's threatened species finding into the written report as a professionally grounded environmental risk assessment, treating the in-house biologist's domain-competent judgment as within the scope of the environmental analysis engagement
Exclude the biologist's finding from the written report on the basis that the contracted scope covers physical site and infrastructure analysis rather than biological habitat assessment, and transmit the finding separately to the client as an advisory outside the formal deliverable
Include a qualified reference to the biologist's finding in the written report using explicitly probabilistic language that characterizes it as a preliminary professional opinion requiring further specialist study, rather than as a confirmed finding, thereby preserving completeness while signaling epistemic uncertainty to the public authority
Engineer A (as Environmental Engineering Principal)
Given that the developer client gave no explicit confidentiality instruction regarding the threatened species finding, and given that the written report is destined for a public authority conducting a regulatory review, should Engineer A treat the faithful agent obligation as authorizing selective omission of the finding in order to serve the client's interest in a favorable regulatory outcome?
Whether the developer client's failure to invoke confidentiality removes any confidentiality-based defense for omission, and whether the faithful agent obligation to the client is bounded such that it cannot authorize Engineer A to submit a materially incomplete report to a public regulatory authority
Include the threatened species finding in the written report, advise the developer client before submission that the finding will appear in the official record, and offer to help the client develop a regulatory response or mitigation strategy
Treat the absence of an explicit confidentiality instruction as requiring Engineer A to seek the client's affirmative guidance before including the adverse finding in the public submission, and defer inclusion pending the client's response
Withdraw from the engagement upon concluding that the client's commercial interest in omitting the finding is irreconcilable with the completeness obligation, rather than submitting either an incomplete report or a report the client has not authorized
Should Engineer A include the in-house biologist's threatened species finding in the written report submitted to the public authority, or is verbal disclosure to the developer client a sufficient discharge of the reporting obligation?
Engineer A's obligation to include the biologist's threatened species finding in the written report submitted to the public authority, given the competing pressures of client service, scope of engagement, and mandatory completeness under NSPE Code Section II.3.a.
Include the biologist's threatened species finding in the written report submitted to the public authority, and notify the developer client in advance of its inclusion so the client can prepare a regulatory response or mitigation strategy
Disclose the threatened species finding verbally to the developer client and recommend that the client independently commission a separate biological survey before the public authority submission, treating the in-house biologist's preliminary finding as outside the contracted scope of the written report
Include a qualified reference to the threatened species concern in the written report using probabilistic framing — noting that a potential habitat risk was identified and recommending further specialist review — while deferring to the client's judgment on whether to commission and submit a full biological assessment to the authority
Given that the biologist used probabilistic language and the finding arose incidentally within an environmental analysis engagement, should Engineer A treat the threatened species finding as a confirmed professional judgment requiring written disclosure to the public authority, or apply the BER 97-13 scope-and-competence framework to justify its omission?
Whether the biologist's finding constitutes a competence-confirmed professional judgment that Engineer A is obligated to include in the written report, or whether the speculative framing ('could threaten') and the scope of the sub-consultancy engagement permit Engineer A to treat it as outside the report's required content — with reference to the BER 97-13 precedent.
Treat the biologist's finding as a competence-confirmed professional judgment within the scope of the environmental engagement and include it in the written report submitted to the public authority
Apply the BER 97-13 framework by characterizing the biological habitat observation as incidental to the contracted scope of the engineering analysis and omit it from the written report, while recommending in the report that the client commission a separate biological survey
Include the finding in the written report with an explicit epistemic qualification — noting that it represents a preliminary biological opinion requiring independent verification — and advise the public authority to seek a separate certified biological assessment before making its regulatory determination
Given that the developer client gave no confidentiality instruction regarding the threatened species finding, should Engineer A treat the finding as unprotected information subject to the full completeness obligation — and would an explicit written confidentiality instruction have altered that analysis?
Whether the absence of an explicit client confidentiality instruction removes any confidentiality-based defense for Engineer A's omission, and whether a hypothetical written confidentiality instruction from the developer client would have provided an ethical defense for omitting the threatened species finding from the public authority report.
Treat the threatened species finding as unprotected information subject to the full completeness obligation under Section II.3.a. and include it in the written report, on the basis that no confidentiality instruction was given and the completeness duty is self-executing
Seek explicit written guidance from the developer client on whether the threatened species finding should be treated as confidential business information before finalizing the written report, and follow the client's instruction if given — including omitting the finding if the client invokes confidentiality under Section III.4.
Apply the BER 97-13 framework by treating the absence of an explicit client instruction as equivalent to implied confidentiality in a commercial environmental consulting context, omit the finding from the written report, and advise the client to disclose the finding independently to the public authority if the client determines it is legally required to do so
Developer Client Residential Condominium
{'project_type': 'Residential condominium development', 'site_context': 'Adjacent to protected wetlands area', 'regulatory_context': 'Subject to public authority review of development proposal'}
Private developer who retained Engineer A's environmental engineering firm to analyze a property adjacent to a wetlands area for potential residential condominium development; received verbal mention of threatened species concern from Engineer A; bears authority over project scope decisions and is subject to environmental regulatory compliance obligations.
{'type': 'applicant_before', 'target': 'Public Authority'}
{'type': 'retains', 'target': 'Engineer A Environmental Firm Principal'}
requested by a developer client to prepare an analysis of a piece of property adjacent to a wetlands area for potential development as a residential condominium
In subsequent discussions with the developer client, Engineer A verbally mentions the concern
Engineer A Affirmative Confidentiality Invocation Absence — Threatened Species Finding Current Case
Engineer A, principal of an environmental engineering firm, retained to prepare an environmental analysis for a developer client proposing a condominium development adjacent to protected wetlands; firm biologist identified threatened bird species habitat risk; client did not affirmatively invoke confidentiality over the finding
Client Confidentiality Affirmative Invocation Prerequisite Constraint
Engineer A was constrained from treating the threatened species habitat finding as confidential — and from omitting it from the written public authority report on confidentiality grounds — because the developer client had not affirmatively invoked confidentiality over the finding, was not even aware of the situation prior to Engineer A bringing it to the client's attention, and never directly requested that Engineer A maintain it as confidential.
NSPE Code of Ethics Section III.4; BER Case analysis distinguishing BER Case 89-7 (client confided information) from present case (client unaware, no confidentiality invocation)
There does not appear to be any affirmative action on the part of the client to treat the information as confidential, since it appears that the client was not even aware of the situation prior to it being brought to the client's attention and the client never directly requested that Engineer A maintain it as confidential.
At the time Engineer A prepared the written environmental assessment report for submission to the public authority
Engineer A, therefore, had an obligation to include it in the written report and advise the client of its inclusion.
There does not appear to be any indication of an effort on the part of the client to treat the information as confidential.
Engineer A Bridge Sub-Consultant Corrective Action Monitoring Obligation
Corrective Action Follow-Through Monitoring After Verbal Out-of-Scope Report Capability
Engineer A had an obligation to follow through and monitor whether the public agency took correct corrective action within a relatively short period of time after the verbal report of the wall defect was communicated through the client chain, and to assess whether the absence of corrective action would trigger an independent obligation to escalate to public authorities.
BER Case 97-13 — Engineer A's continuing obligation after verbal reporting of out-of-scope wall defect observation.
Recognition by the BER that Engineer A's obligation did not end with the verbal report but extended to monitoring corrective action, and that independent reporting to public authorities would have been appropriate only if corrective action was not taken within a relatively short period.
Engineer A (Bridge Sub-Consultant, BER 97-13)
At the same time, the Board was of the opinion that Engineer A had an obligation to follow through to see that correct follow-up action was taken by the public agency.
for Engineer A to have reported this information to a public authority under the circumstances as outlined in the facts, before determining whether corrective action is taken, would have been an overreaction
it was ethical for Engineer A not to report this information to any other public agency or authority as long as corrective action was taken by the public agency within a relatively short period of time
Engineer A Bridge Sub-Consultant Prime Consultant Deference Recognition
Prime Consultant Superior Position Deference in Multi-Party Project Capability
Engineer A recognized that VWX Architects and Engineers, as prime consultant with overall project responsibility and superior knowledge of project history, prior consultants, and interrelationships, was in a far better position to evaluate the significance of the wall defect observation, and appropriately deferred to the prime consultant's judgment about handling the out-of-scope finding.
BER Case 97-13 — Engineer A as sub-consultant to VWX Architects and Engineers on bridge overhaul project.
Reporting the wall defect observation verbally through the client chain to VWX and the public agency, rather than independently escalating to public authorities, and deferring to VWX's instruction not to include the observation in the final report.
Clearly the prime consultant, who has overall responsibility for the project, was in a far better position than Engineer A to understand the interrelationships between various elements of the projects, including the history of previous work performed on the bridge, prior consultants, contractors, etc., in order to make an informed evaluation.
Therefore, the Board concluded that Engineer A did the appropriate thing in coming forward to his client with the information and also by documenting the information for possible future reference as appropriate.
Engineer A Bridge Sub-Consultant Speculative Observation Field Notes Preservation
Speculative Observation Written Report Exclusion with Field Notes Preservation Capability
Engineer A, as a civil engineer without structural engineering expertise, correctly determined that the speculative observation about the bridge wall defect should be excluded from the final written report while being preserved in engineering field notes, and correctly recognized that the field notes must not be altered.
BER Case 97-13 — Engineer A as sub-consultant performing bridge pavement inspection, observing apparent preexisting wall defect outside scope of work.
Agreement to retain the wall defect observation in engineering notes but not include it in the final report, as requested by the prime consultant, while preserving the field documentation for possible future reference.
However, under no circumstance would it be appropriate for Engineer A to alter his field notes.
While it might have been appropriate for Engineer A to note such information in his field notes, to place this information in a final report would not be responsible and could unnecessarily inflame the situation.
the Board concluded that it would have been improper for Engineer A to include reference to the information in his final report, particularly since it would have been based upon mere speculation and not careful testing or evaluation by a competent individual or firm.
Engineer A Domain Competence Confirmed Finding Written Report Inclusion — Threatened Species Current Case
Engineer A, environmental engineer with qualified biologist consultation, confirmed threatened bird species habitat risk adjacent to proposed condominium development; finding was technically confirmed, not speculative; client preferred omission
Domain Competence Confirmed Finding Written Report Inclusion Mandate Constraint
Engineer A was mandated to include the threatened species habitat finding in the written environmental assessment report submitted to the public authority, because Engineer A possessed domain competence as an environmental engineer with qualified biologist consultation, and the finding was technically confirmed rather than based on surmise or speculation — distinguishing the present case from BER Case 97-13 where omission was permissible due to speculation and lack of structural engineering competence.
NSPE Code of Ethics Section II.3.a.; NSPE Code Section III.2.d.; BER Case analysis contrasting BER Case 97-13 with present case
Under the facts, as an environmental engineer with consultation by an apparently qualified biologist, it appears that Engineer A has technical competence concerning the matter in question.
Further, unlike BER Case No. 97-13, there is nothing in the facts that the conclusions reached are based upon surmise or speculation.
Moreover, under NSPE Code Section II.3.a., engineers have an obligation to be objective and truthful in professional reports, statements, or testimony and include all relevant and pertinent information in such reports.
Engineer A Environmental Firm Principal BER Precedent Triangulation
Environmental Violation Precedent Triangulation Capability
The BER triangulated among BER Cases 89-7, 97-13, and 04-8 to determine that the present case — involving an environmental engineer with domain expertise and biologist consultation, with no affirmative client confidentiality invocation — was most analogous to BER 04-8 rather than 89-7 or 97-13, and that the critical factual distinctions (domain expertise, non-speculative findings, absence of confidentiality invocation) produced a clear obligation to include the threatened species finding in the written report.
BER analysis of Engineer A's disclosure obligations in the threatened species environmental assessment case.
BER analysis distinguishing the present case from BER 97-13 (no domain expertise, speculative observation) and BER 89-7 (client reliance on confidentiality, no domain expertise) and applying BER 04-8 (environmental engineer with domain expertise, post-contract violation discovery) as the most apposite precedent.
Engineer A (Environmental Firm Principal) / BER
Applying this analysis to the present case and in light of the NSPE Code of Ethics language contained in Section III.2.d., the Board believes that Engineer A's obligations are clear.
Moreover, as the Board noted in its earlier analysis of BER Case Nos. 89-7 and 97-13
Engineer A Environmental Firm Principal Confidentiality Non-Invocation Recognition
Client Confidentiality Affirmative Invocation Prerequisite Recognition Capability
Engineer A was required to recognize that the developer client had not affirmatively invoked confidentiality over the threatened species finding — having been unaware of the situation before Engineer A raised it and never having requested confidentiality — and that this absence of affirmative invocation meant confidentiality did not bar inclusion of the finding in the written report.
Engineer A's obligation to include the threatened species finding in the written report submitted to the public authority considering the condominium development proposal.
Determination that the threatened species finding must be included in the written environmental assessment report submitted to the public authority, notwithstanding the absence of explicit client consent, because no confidentiality obligation had been affirmatively triggered.
Engineer A (Environmental Firm Principal)
Engineer A Environmental Firm Principal Environmental Stewardship Wetlands Assessment
Environmental Stewardship Wetlands Adjacent Development Assessment Capability
Engineer A, as principal of an environmental engineering firm conducting an assessment of property adjacent to a protected wetlands area, was required to apply environmental stewardship principles — including recognition of ecological interdependencies between the development site and the adjacent wetlands, identification of species habitat dependencies, and assessment of development impacts on protected ecological systems — as an integral component of the professional analysis.
Engineer A's environmental assessment of property adjacent to a wetlands area for residential condominium development.
Engagement of a qualified biologist to assess potential impacts on bird species in the adjacent wetlands area, and recognition that the threatened species finding was a material component of the environmental assessment.
Engineer A, a principal in an environmental engineering firm, was retained by a developer to analyze a property adjacent to a wetlands area for the possible development of a residential condominium complex.
NSPE Code Section III.2.d. places some additional responsibilities on engineers for the protection of environment.
engineers are encouraged to adhere to the principles of sustainable development in order to protect the environment for future generations.
Engineer A Environmental Firm Principal Expertise-Calibrated Disclosure Determination
Expertise-Calibrated Environmental Disclosure Threshold Determination Capability
Engineer A, as an environmental engineer with consultation by a qualified biologist, possessed the domain expertise required to recognize that the threatened species finding was based on expert analysis rather than speculation, and that this expertise level triggered a clear obligation to include the finding in the written report — distinguishing the present case from BER 97-13 where the civil engineer lacked structural engineering expertise.
Triangulation between BER 97-13 (civil engineer without structural expertise making speculative observation) and the present case (environmental engineer with domain expertise and biologist consultation).
Correct determination that the threatened species finding must be included in the written report because it was based on expert environmental analysis with biologist consultation, not mere surmise, and the engineer had relevant domain competence.
While further study may be warranted, it appears that the facts are relatively unambiguous and obvious.
Engineer A Environmental Firm Principal Non-Endangered Threatened Species Classification Knowledge
Non-Endangered Threatened Species Regulatory Classification Knowledge Capability
Engineer A was required to correctly understand and apply the regulatory distinction between 'endangered' and 'threatened' species classifications, recognizing that the bird species' classification as 'threatened' — rather than 'endangered' — carried independent regulatory significance and triggered professional reporting obligations in the written environmental assessment report.
Engineer A's obligation to include the threatened species finding in the written environmental assessment report.
Recognition that the threatened species finding must be included in the written report submitted to the public authority regardless of the species' non-endangered status, consistent with obligations of objective and complete reporting.
a biologist employed by Engineer A's firm reported to Engineer A that the project could threaten a bird species that has been classified as 'threatened' by federal and state environmental regulators.
It would be reasonable to assume that the public authority approving the development would be interested in this information.
Engineer A Environmental Firm Principal Objective Complete Report Public Authority
Objective Complete Environmental Report Public Authority Submission Capability
Engineer A was required to prepare and submit a written environmental assessment report to the public authority that was objective, truthful, and included all relevant and pertinent environmental risk findings — including the threatened species finding — recognizing that the public authority's role as decision-maker on the development proposal created an independent obligation to provide complete information regardless of client preferences.
Engineer A's preparation of the written environmental assessment report for submission to the public authority considering the condominium development proposal.
Obligation to include the threatened species finding in the written report submitted to the public authority and to advise the developer client of its inclusion, consistent with NSPE Code Section II.3.a.
under NSPE Code Section II.3.a., engineers have an obligation to be objective and truthful in professional reports, statements, or testimony and include all relevant and pertinent information in such reports.
Engineer A Environmental Firm Principal Sustainable Development Code Calibration
Sustainability Code Provision Normative Weight Assessment Capability
Engineer A was required to correctly calibrate the normative force of NSPE Code Section III.2.d. as amended in July 2007 — recognizing that the 'encouraged' formulation creates a professional aspiration rather than an absolute obligation — and to integrate this understanding into the analysis of disclosure obligations for the threatened species finding.
Engineer A's environmental assessment of property adjacent to a wetlands area for residential condominium development, decided after the July 2007 amendment to NSPE Code III.2.d.
Analysis of whether the sustainable development encouragement provision independently required inclusion of the threatened species finding in the written report, in addition to the objective completeness obligation under NSPE Code II.3.a.
in July 2007, the NSPE House of Delegates voted to modify the language in NSPE Code Section III.2.d. to state that 'engineers are encouraged to adhere to the principles of sustainable development in order to protect the environment for future generations.'
Engineer A Environmental Firm Principal Threatened Species Written Report Inclusion
Threatened Species Environmental Risk Report Inclusion Capability
Engineer A, as principal of an environmental engineering firm, was required to recognize the professional obligation to include the firm biologist's finding that the condominium project could threaten a bird species classified as 'threatened' by federal and state environmental regulators in the written environmental assessment report submitted to the public authority, and to advise the developer client of its inclusion.
Recognition that the threatened species finding — even though the species was not classified as 'endangered' — was material environmental risk information that must be included in the written report submitted to the public authority, consistent with obligations of objective and truthful reporting.
Engineer A Environmental Firm Principal Verbal Mention Non-Substitution Recognition
Verbal-to-Written Finding Conversion Obligation Recognition Capability
Engineer A was required to recognize that verbally mentioning the threatened species concern to the developer client did not satisfy the professional obligation to include that finding in the written environmental assessment report submitted to the public authority, and that the written report obligation was independent of and not discharged by any verbal communication to the client.
Engineer A's obligation to provide complete written disclosure to the public authority considering the condominium development proposal.
Obligation to include the threatened species finding in the written report notwithstanding any prior verbal mention to the client, recognizing that the public authority's need for complete written information was not satisfied by client-directed verbal communication.
Engineer A Environmental Stewardship Wetlands Assessment Capability Instance
Engineer A, as principal in an environmental engineering firm, possessed the domain capability to conduct environmental stewardship assessment of property adjacent to a protected wetlands area, including recognition of ecological interdependencies and species habitat dependencies relevant to the proposed condominium development.
Engineer A's firm was retained to analyze a property adjacent to a wetlands area for potential residential condominium development, deploying a biologist to assess ecological impacts including threatened species habitat.
Retention as principal environmental engineer to analyze property adjacent to wetlands for residential condominium development, with firm biologist engagement to assess ecological impacts including species habitat effects.
During the firm's analysis, one of the engineering firm's biologists reports to Engineer A that in his opinion, the condominium project could threaten a bird species that inhabits the adjacent protected wetlands area
Engineer A Environmental Threat Reporting Engineer
{'license': 'Professional Engineer — Environmental Engineering', 'specialty': 'Environmental engineering with biologist consultation', 'competence': 'Technically competent in the environmental domain at issue', 'findings_basis': 'Qualified specialist consultation — not mere speculation', 'confidentiality_request': 'None — client was not even aware of the situation prior to engineer raising it'}
An environmental engineer who, in the present case (as distinguished from BER 97-13), performed environmental assessment services with consultation from a qualified biologist, identified a threatened species concern, and bore an obligation under NSPE Code Sections III.2.d. and II.3.a. to include the environmental threat information in the written report submitted to the public authority and to advise the client of its inclusion — distinguishable from BER 97-13 because findings were not speculative, the engineer had relevant technical competence, and no explicit confidentiality request was made by the client.
{'type': 'consultant_to', 'target': 'Development Client'}
{'type': 'consulted', 'target': 'Qualified Biologist'}
{'type': 'reporting_to', 'target': 'Public Authority Approving Development'}
Environmental Threat Reporting Design Engineer
as an environmental engineer with consultation by an apparently qualified biologist, it appears that Engineer A has technical competence concerning the matter in question.
Engineer A Faithful Agent Within Ethical Limits Capability Instance
Faithful Agent Obligation Scope Boundary Recognition Capability
Engineer A possessed — but failed to correctly apply — the capability to recognize that faithful agent obligations to the developer client did not extend to omitting material environmental findings from written reports submitted to public authorities, and that the faithful agent role was bounded by the paramount obligation to public welfare and complete professional reporting.
Engineer A served as a retained environmental engineering firm principal for a developer client, and the faithful agent obligation to that client was bounded by the professional obligation to include all material findings in written reports submitted to public regulatory authorities.
Treating the developer client's implicit preference for omission of the threatened species finding as consistent with faithful agent obligations, rather than recognizing that faithful agent duties are bounded by professional ethics obligations to public welfare and complete reporting.
Engineer A does not include the information in a written report that will be submitted to a public authority
Engineer A Non-Endangered Threatened Species Classification Knowledge Instance
Engineer A, as principal in an environmental engineering firm, possessed — but failed to correctly apply — the capability to recognize that a 'threatened' species classification under federal and state environmental law triggers independent professional reporting obligations even when the species is not classified as 'endangered.'
The firm biologist identified a bird species classified as 'threatened' (not 'endangered') by federal and state environmental regulators; Engineer A omitted this finding from the written report submitted to the public authority.
Failure to include the threatened species finding in the written public authority report, suggesting that Engineer A may have incorrectly treated the non-endangered status of the species as diminishing the reporting obligation, despite the species carrying 'threatened' regulatory classification.
The bird species in not an 'endangered species,' but it is considered a 'threatened species' by federal and state environmental regulators
Engineer A Objective Complete Environmental Report Submission Capability Instance
Material Omission Recognition in Professional Reports Capability
Engineer A possessed — but failed to exercise — the capability to recognize that the written environmental report submitted to the public authority omitted a material finding (the threatened species concern) that was necessary for the public authority to make an informed decision on the development proposal.
Engineer A prepared a written environmental report for submission to a public authority considering a residential condominium development proposal, omitting the firm biologist's threatened species finding despite having received it and verbally mentioned it to the developer client.
Preparation and submission of a written environmental report to the public authority that omitted the threatened species finding despite Engineer A's knowledge of the finding, constituting a material omission in a professional report submitted to a regulatory decision-maker.
Engineer A Pre-Code-Addition Precedent Inapplicability — BER 89-7 and 97-13 Post-Section III.2.d. Cases
Board reviewing Engineer A's obligations as matter of first impression under Section III.2.d.; BER Cases 89-7, 97-13, and 04-8 all decided prior to January 2006 code addition; Board required to integrate new provision into analysis
Pre-Code-Addition Precedent Inapplicability to Post-Addition Obligations Constraint
Engineer A and ethics reviewing bodies were constrained from mechanically applying BER Cases 89-7 and 97-13 as complete authority for Engineer A's obligations in the present case, because those cases were decided prior to the January 2006 addition of NSPE Code Section III.2.d., which imposes additional environmental protection responsibilities that were not present at the time those precedents were decided — requiring integration of Section III.2.d. into the analysis of the present post-addition case.
NSPE Code of Ethics Section III.2.d. (added January 2006, modified July 2007); BER Case analysis noting pre-addition status of BER Cases 89-7, 97-13, and 04-8
At the time of ethics review of Engineer A's conduct in the present case, which arose after the January 2006 addition of Section III.2.d.
With this added language a further clarification, the NSPE Board of Ethical Review will review this language as a matter of first impression and in the context of other language in the NSPE Code and earlier NSPE Board of Ethical Review Opinions.
Engineer A Public Welfare Paramountcy Threatened Species Omission Capability Instance
Public Welfare Paramountcy Recognition Capability
Engineer A possessed — but failed to exercise — the capability to recognize that the obligation to hold paramount public welfare — including ecological welfare of the protected wetlands and the threatened bird species — required inclusion of the threatened species finding in the written public authority report, overriding any client preference for omission.
Engineer A omitted the threatened species finding from the written report submitted to the public authority considering the development proposal, despite the ecological welfare implications for the adjacent protected wetlands.
Failure to include the threatened species finding in the written public authority report despite knowledge of the finding, prioritizing client relationship management over the paramount obligation to public welfare and complete disclosure to the regulatory authority.
Engineer A Specialist Consultation Competence Elevation — Biologist Confirmed Threatened Species Finding
Engineer A's firm biologist identified threatened bird species habitat risk; Engineer A as environmental engineer with biologist consultation was found to have technical competence concerning the matter, distinguishing the case from prior precedents where engineers lacked domain expertise
Specialist Consultation Competence Elevation Disclosure Threshold Constraint
Engineer A was constrained from invoking lack of personal ornithological or biological specialist expertise as a basis for omitting the threatened species finding from the public authority report, because the firm biologist's qualified specialist consultation elevated Engineer A's effective competence threshold for the finding, triggering the mandatory written report inclusion obligation applicable to domain-competent confirmed findings.
NSPE Code of Ethics Section II.3.a.; BER Case analysis distinguishing present case from BER Cases 89-7 and 97-13 on competence grounds
in BER Case No. 89-7, the engineer did not have any particular expertise in the technical areas (mechanical/electrical) involved in the matter at issue.
in BER Case No. 97-13, the engineer's evaluation was based upon general surmise and speculation about the cause of the structural failure of the wall, based entirely upon a visual inspection without anything more. In addition, as in BER Case No. 89-7, there was nothing noted in the facts to indicate that Engineer A had expertise in the specific discipline involved—structural engineering.
Engineer A Sustainable Development Threatened Species Advocacy Capability Instance
NSPE Sustainable Development Code Provision Application Capability
Engineer A, as a sustainable development obligation-bearing environmental engineer, possessed the capability to identify and apply NSPE Code sustainable development principles — including protection of threatened species and adjacent wetlands ecology — in conducting the environmental assessment and preparing the written report.
Engineer A was retained as an environmental engineering firm principal to analyze property adjacent to a wetlands area, with sustainable development and environmental stewardship obligations arising from the NSPE Code and the environmental nature of the engagement.
Failure to integrate sustainable development principles into the written public authority report by omitting the threatened species finding, despite the firm's environmental engineering mandate and the biologist's identification of the ecological risk.
Engineer A is a principal in an environmental engineering firm
Engineer A Threatened Species Written Report Inclusion Capability Instance
Engineer A, as principal in an environmental engineering firm, possessed — but failed to exercise — the capability to recognize that the firm biologist's threatened species finding must be included in the written report submitted to the public authority, and to include that finding in the report with client notification.
Engineer A was retained to prepare an environmental analysis of property adjacent to a wetlands area for residential condominium development; the firm biologist identified a threatened bird species; Engineer A verbally mentioned the concern to the client but omitted it from the written public authority report.
Failure to include the threatened species concern in the written report submitted to the public authority, despite having received the finding from the firm biologist and verbally mentioning it to the developer client — demonstrating that the capability was possessed but not exercised.
Engineer A Verbal Mention Non-Substitution Capability Instance
Engineer A possessed — but failed to exercise — the capability to recognize that verbally mentioning the threatened species concern to the developer client did not satisfy the independent obligation to include that finding in the written report submitted to the public authority.
Engineer A verbally mentioned the threatened species concern to the developer client in subsequent discussions but did not include the information in the written report submitted to the public authority considering the development proposal.
Engineer A verbally mentioned the concern to the developer client but treated that verbal mention as sufficient, failing to recognize that the written public authority report required independent complete disclosure of the finding.
but Engineer A does not include the information in a written report that will be submitted to a public authority that is considering the developer's proposal
Engineer A Wetland Delineation Environmental Law Violation Client Confrontation BER 04-8
Environmental Law Violation Client Inquiry and Remediation Direction Capability
Engineer A was required to contact the former client, inquire about the unauthorized wetland fill actions, point out that the actions constituted a violation of federal and state environmental laws, direct the client to take remedial steps in full compliance with applicable environmental laws and regulations, and — if the client failed to act — bring the matter to the attention of appropriate regulatory authorities.
BER Case 04-8 — Engineer A's obligations upon discovering unauthorized wetland fill by former client.
BER determination that Engineer A should contact the client, point out the legal violation, direct remediation in full compliance with environmental laws, and escalate to regulatory authorities if the client failed to act.
Engineer A (Wetland Delineation Engineer, BER 04-8)
the Board set forth an appropriate course of action for Engineer A concluding that Engineer A should contact the client and inquire about the actions the client had taken and point out the actions were a violation of the law and that steps needed to be taken to remedy the violation or obtain a variance from the proper authorities.
In this connection, the engineer should advise that the remedial actions should be in full compliance with all applicable environmental laws and regulations, which may include review by a licensed engineer.
Engineer A Wetland Delineation Post-Contract Environmental Violation Recognition BER 04-8
Post-Contract Incidental Observation Environmental Violation Recognition Capability
Engineer A, having previously performed wetland delineation services, recognized upon incidentally driving past the former client's property that the client had installed substantial fill material on wetlands without permits — constituting a substantial violation of federal and state environmental laws — and that this post-contract incidental observation triggered professional obligations despite the absence of any ongoing contractual relationship.
BER Case 04-8 — Engineer A's post-contract incidental observation of unauthorized wetland fill by former client.
Recognition that the unauthorized wetland fill constituted a substantial violation of law and that professional obligations required contacting the client, directing remediation, and escalating to regulatory authorities if the client failed to act.
More recently in BER Case No. 04-8, Engineer A, an environmental engineer, performed wetland delineation services on the client's wetland site. A few months after Engineer A completed the services, he drove by his client's property and noticed that the client had installed a substantial amount of fill material on more than half an acre across a portion of the wetlands without any permits, variances, or permissions.
The installation of the fill material was a substantial violation of the federal and state laws and regulations.
Engineer A completes wetland delineation services (BER Case No. 04-8) before Engineer A discovers fill material violation
A few months after Engineer A completed the services, he drove by his client's property and noticed that the client had installed a substantial amount of fill material.
Engineer A completes wetland delineation services (BER Case No. 04-8)
Engineer A discovers fill material violation
Engineer A verbally informs developer client of concern before Engineer A submits written report to public authority
In subsequent discussions with the developer client, Engineer A verbally mentions the concern, but Engineer A does not include the information in a written report that will be submitted to a public authority that is considering the developer's proposal.
Engineer A submits written report to public authority
Engineer A verbally reports wall defect concern to client (BER Case No. 97-13) before Client requests Engineer A omit information from final report
Engineer A verbally reported this information to his client, who then verbally reported the information to the public agency. The public agency contacted VWX Architects and Engineers, who then contacted Engineer A and asked Engineer A not to include this additional information in his final report.
Engineer A verbally reports wall defect concern to client (BER Case No. 97-13)
Client requests Engineer A omit information from final report
Engineer A's analysis of property before Submission of written report to public authority
Engineer A is ... requested by a developer client to prepare an analysis of a piece of property ... Engineer A does not include the information in a written report that will be submitted to a public authority.
Submission of written report to public authority
Engineer Public Safety Escalation Standard - Environmental Threat Application
Professional norms governing escalation of environmental public safety concerns beyond the client relationship
Engineer Public Safety Escalation Standard
Engineer A verbally mentions the concern, but Engineer A does not include the information in a written report that will be submitted to a public authority that is considering the developer's proposal.
Engineer A in determining the appropriate scope of disclosure regarding the threatened species concern
Governs whether Engineer A's obligation to protect public welfare requires escalating the threatened species concern to the public authority reviewing the development proposal, beyond merely verbally informing the developer client.
Environmental Stewardship Wetlands Adjacent Development Constraint — Engineer A
Engineer A's firm was specifically engaged to conduct an environmental analysis of property adjacent to a protected wetlands area, giving the firm heightened environmental stewardship obligations with respect to the threatened species finding identified by the firm's biologist.
Environmental Engineer Heightened Wetland Stewardship Constraint
As a principal in an environmental engineering firm conducting an environmental analysis of property adjacent to a protected wetlands area, Engineer A bore a heightened professional obligation to respond to the threatened species finding — arising from the firm's specialized environmental domain expertise, direct site knowledge, and professional identity as an environmental steward — prohibiting Engineer A from treating the threatened species concern as outside the firm's professional responsibility or as insufficiently material to warrant written disclosure.
NSPE Code of Ethics Section I.1; NSPE Code Section III.2.d; professional environmental engineering stewardship standards
Throughout the environmental analysis engagement and at the time of report submission
requested by a developer client to prepare an analysis of a piece of property adjacent to a wetlands area
Firm Biologist Epistemic Humility Upward Reporting
Firm Biologist Epistemic Humility and Upward Reporting Capability
The firm biologist was required to recognize that the threatened species observation must be reported completely and without independent filtering to Engineer A — the firm principal — deferring to Engineer A's judgment about the materiality and reporting implications of the finding rather than independently assessing whether and how to report it.
Firm biologist's role in identifying and reporting the threatened bird species finding during the environmental assessment of the condominium development site.
Reporting the threatened species finding to Engineer A, enabling Engineer A to make the professional judgment about inclusion in the written report submitted to the public authority.
Firm Biologist (Employee of Engineer A's firm)
During the course of the analysis, a biologist employed by Engineer A's firm reported to Engineer A that the project could threaten a bird species that has been classified as 'threatened' by federal and state environmental regulators.
Firm Biologist Upward Reporting Capability Instance
Intern Materiality Judgment Restraint Capability
The firm biologist possessed and exercised the capability to report the threatened species observation to Engineer A — the firm principal — without independently filtering or withholding the finding based on personal assessment of its materiality or reporting implications.
During the firm's analysis of the property adjacent to the wetlands area, the firm biologist identified a threatened bird species and reported the finding to Engineer A as firm principal.
The firm biologist reported the threatened species concern directly to Engineer A upon identifying it during the property analysis, fulfilling the upward reporting obligation without independent materiality filtering.
Firm Biologist Threatened Species Reporter
Incomplete Risk Disclosure Prohibition — Engineer A Threatened Species Written Report
Engineer A's omission of the threatened species finding from the written public authority report constituted an incomplete risk disclosure prohibited by the engineer's professional obligations to be objective, truthful, and complete in professional reports.
Engineer A was prohibited from omitting the known threatened species risk from the written report submitted to the public authority — because the threatened species finding constituted a known material environmental risk that the engineer was obligated to disclose to the public authority as a relevant stakeholder, and because omission of the finding created a materially incomplete and potentially misleading report.
NSPE Code of Ethics Section II.3.a; NSPE Code Section I.1; professional report completeness standards
At the time of finalizing and submitting the written environmental report to the public authority
one of the engineering firm's biologists reports to Engineer A that in his opinion, the condominium project could threaten a bird species
Integrate Biologist's Threatened Species Finding
Finding could jeopardize or complicate developer's project approval
Finding would need to be communicated to client and potentially to public authority
NSPE Code Section II.3.a., objectivity and truthfulness in professional reports
Obligation to consider all relevant and pertinent environmental information in the course of professional analysis
Obligation to oversee and integrate work of subordinate team members
NSPE Code Section III.2.d., sustainable development and environmental protection for future generations
Objectivity and completeness in professional analysis
Reliance on qualified specialists within the firm
Acknowledge and process a professionally significant environmental finding generated by a qualified member of the engineering team
Environmental engineering judgment to evaluate significance of biologist's finding
Knowledge of threatened species regulatory framework
Supervisory and integrative capacity over multidisciplinary team
During the firm's analysis, after biologist's internal report
Upon receiving the biologist's report that the condominium project could threaten a 'threatened' bird species inhabiting the adjacent protected wetlands, Engineer A incorporated this finding into the firm's ongoing analysis rather than dismissing or disregarding it. This decision to treat the biologist's report as a material finding set the stage for subsequent disclosure decisions.
Integrate Biologist's Threatened Species Finding → Verbally Disclose Concern to Client
Upon receiving the biologist's report that the condominium project could threaten a 'threatened' bird species, Engineer A chose to verbally mention the biological concern in subsequent discussions with the developer client
Without integrating the biologist's finding, Engineer A would have had no basis for even the partial verbal disclosure that occurred; the verbal disclosure was a direct downstream consequence of receiving the finding
Engineer A's awareness of the finding's significance
Engineer A's partial recognition of a disclosure obligation
Ongoing communication channel between Engineer A and the developer client
Receipt and integration of the biologist's finding by Engineer A
Awareness of finding + client communication opportunity + partial sense of professional obligation = verbal disclosure
The professional standard governing environmental disclosure in engineering practice is formally elevated; Engineer A's conduct is now evaluated against an explicit sustainable development obligation codified in the NSPE Code
January 2006 (addition); July 2007 (modification), referenced in Discussion section as backdrop to case evaluation
The NSPE Board of Ethical Review contextualizes Engineer A's conduct against the January 2006 addition (and July 2007 modification) of Section III.2.d to the NSPE Code of Ethics, which addresses sustainable development obligations. This code evolution establishes the formal professional standard against which Engineer A's omission is evaluated.
National Society of Professional Engineers Board of Directors (January 2006); modified by NSPE House of Delegates (July 2007)
NSPE Code of Ethics Section III.2.d. — Sustainable Development Provision
Sustainable Development Ethics Provision
engineers are encouraged to adhere to the principles of sustainable development in order to protect the environment for future generations
Applying this analysis to the present case and in light of the NSPE Code of Ethics language contained in Section III.2.d., the Board believes that Engineer A's obligations are clear
sustainable development is the challenge of meeting human needs for natural resources, industrial products, energy, food, transportation, shelter, and effective waste management while conserving and protecting environmental quality and the natural resources base essential for future development
NSPE Board of Ethical Review in determining Engineer A's obligations regarding threatened species disclosure
Establishes the professional obligation of engineers to adhere to sustainable development principles, applied to determine Engineer A's duty to include environmental findings in written reports submitted to public authorities
July 2007 revision (modified from January 2006 original)
National Society of Professional Engineers
NSPE Code of Ethics Section III.4. — Confidentiality Obligations
there are various rationales for the nondisclosure language contained in NSPE Code Section III.4.
NSPE Board of Ethical Review in analyzing the client confidentiality dimension of Engineer A's situation
Establishes the rationale for nondisclosure of confidential client information, applied in tension with public safety and environmental disclosure obligations to determine the scope of Engineer A's confidentiality duties
NSPE Code of Ethics Section II.3.a. — Objectivity and Truthfulness in Professional Reports
under NSPE Code Section II.3.a., engineers have an obligation to be objective and truthful in professional reports, statements, or testimony and include all relevant and pertinent information in such reports
NSPE Board of Ethical Review in determining Engineer A's reporting obligations
Establishes the engineer's obligation to be objective and truthful in professional reports and to include all relevant and pertinent information, applied to require Engineer A to include threatened species findings in the written report
in light of the NSPE Code of Ethics language contained in Section III.2.d.
NSPE Code Section III.2.d. places some additional responsibilities on engineers for the protection of environment
the nondisclosure language contained in NSPE Code Section III.4.
NSPE Board of Ethical Review in analyzing Engineer A's obligations
Primary normative authority governing engineer obligations regarding environmental disclosure, client confidentiality, public safety, and sustainable development in the present case
Engineer A in preparing environmental analysis and written report for public authority submission
Primary normative authority governing Engineer A's obligation to include material environmental findings in written reports submitted to public authorities, and the duty to hold public safety and welfare paramount over client interests.
Engineer A's professional reporting obligations would be violated
If the project proceeded and harmed the threatened species, Engineer A's omission could be implicated in the resulting environmental damage
Public authority would make a regulatory decision without full environmental information
Threatened bird species and adjacent protected wetlands would remain unprotected through the regulatory process
Protection of developer client's immediate commercial interests (though not a recognized ethical justification under the circumstances)
Avoidance of harm to client's business interests
Client faithfulness and fiduciary duty as agent/trustee
Misapplication of confidentiality principles where no confidentiality was requested
Protect the developer client's interests by preventing adverse environmental findings from entering the public record and potentially obstructing project approval
Environmental engineering judgment to assess materiality and relevance of threatened species finding
Knowledge of NSPE Code reporting obligations
Professional report writing for public authority submission
Understanding of federal and state threatened species regulatory framework
At report preparation and submission stage, before public authority review
Fundamental obligation to hold paramount the safety, health, and welfare of the public
NSPE Code Section II.3.a.: obligation to be objective and truthful in professional reports, statements, or testimony and to include all relevant and pertinent information
NSPE Code Section III.2.d., obligation (or strong encouragement) to adhere to sustainable development principles to protect the environment for future generations
Obligation not to suppress material findings generated by qualified team members
Obligation to provide complete and accurate information to a public authority conducting regulatory review
Engineer A made the deliberate decision not to include the biologist's threatened species concern in the written report submitted to the public authority considering the developer's proposal. This omission constituted the central ethical violation identified by the NSPE Board of Ethical Review, as it deprived the public authority of material environmental information relevant to its regulatory decision.
Omit Finding from Written Report → BER Ethical Violation Conclusion Reached
Engineer A made the deliberate decision not to include the biologist's threatened species concern in [the written report], which the NSPE Board of Ethical Review concluded, after analyzing the facts against the Code of Ethics, constituted an ethical violation
Had Engineer A included the threatened species finding in the written report, the BER would have had no basis to conclude an ethical violation occurred; the verbal disclosure alone was insufficient to satisfy the written disclosure obligation to the public authority
Engineer A's deliberate omission of the threatened species finding from the written report
Engineer A's full knowledge of the finding's significance at the time of omission
The BER's jurisdiction and mandate to evaluate Engineer A's conduct
The existence and applicability of NSPE Code Section III.2.d requiring disclosure of environmental risks
The public authority's reliance on the written report for regulatory decision-making
Deliberate omission of material environmental finding + applicable ethical code provision + BER review = ethical violation conclusion
The verbal-only disclosure to client, without written disclosure to the public authority, was insufficient to satisfy professional obligations under the Code
Omit Finding from Written Report → Written Report Submitted to Authority
Engineer A made the deliberate decision not to include the biologist's threatened species concern in [the written report], which was then formally submitted to the public authority, creating an incomplete evidentiary record for regulatory review
Had Engineer A included the biologist's finding in the written report, the public authority would have received complete information and could have initiated appropriate regulatory scrutiny of the threatened species concern from the outset
Absence of any other mechanism by which the finding would reach the public authority
Completion and submission of the written report to the public authority
Engineer A's deliberate decision to exclude the threatened species finding
Public authority's reliance on submitted materials as the basis for review
Deliberate omission + report submission + authority reliance on written record = incomplete regulatory review basis
Police Officer B accident on bridge before Scheduled overhaul of bridge (BER Case No. 97-13)
Three months prior to the beginning of the scheduled overhaul of the bridge, while traveling across the bridge, Police Officer B lost control of his patrol car.
Scheduled overhaul of bridge (BER Case No. 97-13)
Professional Report Integrity Standard - Environmental Omission Application
Professional engineering ethics bodies and environmental engineering practice community
Professional norms governing completeness and accuracy of engineering reports submitted to public authorities
Engineer A does not include the information in a written report that will be submitted to a public authority that is considering the developer's proposal.
Engineer A in preparing written environmental analysis report
Governs Engineer A's obligation not to omit the threatened species concern from the written report submitted to the public authority, even though the concern was verbally communicated to the developer client.
{'entity_type': 'Public Agency', 'authority': 'Infrastructure owner and client with corrective action responsibility'}
Retained VWX Architects and Engineers for a major scheduled bridge overhaul; received verbal notification of the out-of-scope wall defect observation through the VWX intermediary; bore responsibility for taking corrective action within a reasonable period as a condition of Engineer A's ethical compliance with non-reporting.
{'type': 'client_of', 'target': 'VWX Architects and Engineers Prime Consultant'}
{'type': 'corrective_action_responsible', 'target': 'Bridge wall defect'}
a public agency retained the services of VWX Architects and Engineers to perform a major scheduled overhaul of a bridge.
Engineer A had an obligation to follow through to see that correct follow-up action was taken by the public agency.
The public agency contacted VWX Architects and Engineers
{'authority_type': 'Public regulatory or administrative body', 'function': 'Review and consideration of development proposals', 'reliance': 'Receives written engineering reports as basis for decision-making'}
A public regulatory or administrative authority that is considering the developer's proposal for residential condominium development adjacent to the protected wetlands area; the recipient of Engineer A's written report, which omits the threatened species concern; bears authority to approve or deny the project and relies on complete and accurate engineering reports to make informed decisions protecting public welfare and environmental resources.
{'type': 'receives_report_from', 'target': 'Engineer A Environmental Firm Principal'}
{'type': 'reviews_proposal_of', 'target': 'Developer Client Residential Condominium'}
a written report that will be submitted to a public authority that is considering the developer's proposal
Regulatory machinery is now in motion based on incomplete information; the window for correction narrows as the review progresses; potential for irreversible environmental harm increases with each step toward approval
Following submission of Engineer A's written report
The public authority begins its formal review of the development proposal based on the submitted materials, including Engineer A's incomplete written report. The regulatory process is now underway on a materially deficient information base.
Public Safety Paramount Constraint — Engineer A Threatened Species Wetlands Development
The developer client's interest in not disclosing the threatened species finding conflicted with Engineer A's paramount obligation to public welfare, including the ecological welfare of the adjacent protected wetlands.
Engineer A was constrained by the paramount obligation to hold public welfare — including ecological welfare of the protected wetlands and the threatened bird species — above the developer client's preference for omitting adverse environmental findings from the public authority report, prohibiting Engineer A from proceeding with submission of an incomplete report that suppressed a confirmed environmental risk.
NSPE Code of Ethics Section I.1 (engineers shall hold paramount the safety, health, and welfare of the public); NSPE Code Section III.2.d (sustainable development)
Throughout the environmental analysis engagement and at the time of report submission to the public authority
Was it ethical for Engineer A not to include the information about the threat to the bird species in a written report that will be submitted to a public authority that is considering the developer’s proposal?
Does Engineer A's verbal disclosure to the developer client satisfy any portion of the ethical obligation to report the threatened species finding, or does the submission of an incomplete written report to a public authority independently constitute an ethical violation regardless of what was communicated privately?
To what extent does the biologist's finding constitute a confirmed technical fact versus a professional opinion, and does that distinction affect Engineer A's obligation to include it in the written report submitted to the public authority?
Was Engineer A obligated to advise the developer client in advance that the threatened species finding would be included in the written report, and if the client then instructed Engineer A to omit it, what course of action would be ethically required?
Does the fact that the bird species is classified as 'threatened' rather than 'endangered' under federal and state regulatory frameworks materially reduce Engineer A's ethical obligation to disclose the finding in the written report, or is the regulatory classification threshold irrelevant to the completeness obligation under the NSPE Code?
Does the Faithful Agent Obligation Within Ethical Limits Applied to Developer Client Relationship conflict with the Public Welfare Paramount Invoked Against Engineer A Omission, and at what point does serving the client's interest in a favorable report cross the line into a violation of the paramount obligation to protect the public?
Does the Confidentiality Non-Invocation by Client Removes Confidentiality Defense principle conflict with the Confidential Client Information Constraint, and how should Engineer A determine whether the threatened species finding constitutes confidential business information when no explicit confidentiality instruction was given?
Does the Scope Limitation Defense Rejected for Environmental Finding principle conflict with the Expertise Calibration Applied to Present Case vs BER 97-13 principle, given that in BER 97-13 a scope limitation and competence gap together justified omission of a structural observation, while in the present case Engineer A's firm has domain-competent biologist support — and how should the presence or absence of in-house specialist expertise determine whether an incidental environmental finding must be included in a written report?
Does the Sustainable Development Obligation Applied to Threatened Species Finding — an encouraged rather than mandatory provision under NSPE Code Section III.2.d. — conflict with the Objective Completeness Obligation Under NSPE Code Section II.3.a., which is mandatory, in the sense that relying solely on the encouraged sustainable development provision might understate the strength of Engineer A's reporting obligation, and should the Board's conclusion rest primarily on the mandatory completeness standard rather than the aspirational sustainability language?
From a deontological perspective, did Engineer A fulfill their categorical duty of truthfulness and completeness to the public authority by verbally disclosing the threatened species risk to the developer client alone, or does the duty of objective and truthful professional reporting require written disclosure to every party relying on the report regardless of client preference?
From a consequentialist perspective, did the aggregate harm to the threatened bird species, the protected wetlands ecosystem, and the integrity of the public authority's decision-making process outweigh any benefit Engineer A provided to the developer client by omitting the threatened species finding from the written report, and how should those harms be weighted against each other?
From a virtue ethics perspective, did Engineer A demonstrate the professional integrity, courage, and environmental stewardship expected of a principal in an environmental engineering firm when they chose verbal-only disclosure to the client rather than written disclosure in the public authority report, and does this conduct reflect the character of a trustworthy environmental professional?
From a deontological perspective, does the NSPE Code's distinction between mandatory duties such as objective and truthful reporting under Section II.3.a. and encouraged provisions such as sustainable development under Section III.2.d. create a tiered obligation structure, and if so, is Engineer A's omission a violation of a strict duty, an encouraged aspiration, or both simultaneously?
If Engineer A had included the threatened species finding in the written report and proactively notified the developer client of its inclusion before submission, would the client have had a legitimate basis to object, and would that inclusion have altered the public authority's decision on the condominium development proposal?
If the bird species at risk had been classified as an endangered species rather than merely a threatened species, would Engineer A's ethical obligation to include the finding in the written report have been stronger, and does the threatened-versus-endangered distinction carry any legitimate moral weight in determining the scope of the disclosure duty?
If the developer client had explicitly invoked confidentiality and instructed Engineer A in writing not to include the threatened species finding in the public authority report — mirroring the confidentiality instruction given in BER Case No. 97-13 — would that instruction have provided Engineer A with an ethical defense for the omission, or would the public safety and regulatory disclosure obligations have overridden client confidentiality in this environmental context?
If Engineer A had declined the engagement entirely upon learning that the proposed development site was adjacent to protected wetlands containing a threatened species, would that refusal have better served the public interest than accepting the engagement and subsequently omitting the critical environmental finding, and does the acceptance of the engagement itself create an affirmative obligation to report all material environmental findings regardless of client preference?
Regulatory Compliance State for Public Authority Development Review
From submission of the written report to the public authority through the authority's decision on the developer's proposal
The developer's proposal under review by a public authority, within which Engineer A's written report is a submitted document
Public authority issues its decision on the developer's proposal
Developer submits proposal to a public authority for consideration, with Engineer A's written report as supporting documentation
Sustainable Development Threatened Species Advocacy Constraint — Engineer A NSPE Code III.2.d
The NSPE Code's sustainable development provision, while using 'encouraged' rather than mandatory language, established an evolving professional standard requiring Engineer A to integrate threatened species and wetland protection considerations into the environmental analysis and report.
Evolving Sustainability Standard Judicial Deference Constraint
Engineer A was constrained by the NSPE Code Section III.2.d sustainable development provision — as modified in July 2007 — to actively consider and integrate sustainable development principles, including protection of threatened species and adjacent wetland ecosystems, in the environmental analysis and written report, prohibiting reliance on pre-2007 professional norms that might have treated threatened species concerns as outside the scope of professional ethical obligation.
NSPE Code of Ethics Section III.2.d (sustainable development, added 2006, modified 2007); BER Case precedent on sustainable development obligations
Threatened Species Habitat Risk from Condominium Development
From the biologist's internal report of threatened species risk through the submission of the written report to the public authority without inclusion of that finding
Bird species and adjacent wetlands ecosystem
Future condominium residents and general public
Threatened Species Habitat Proximity Development State
Engineer A's environmental analysis engagement for the developer client
Not terminated — the risk finding remains omitted from the written report submitted to the public authority
Engineer A's firm biologist reports that the condominium project could threaten a bird species inhabiting the adjacent protected wetlands
Threatened Species Protection Regulatory Framework - Federal and State
Federal and state environmental regulatory agencies
Federal and State Threatened Species Regulatory Standards
Threatened Species Protection Regulatory Framework
The bird species is not an 'endangered species,' but it is considered a 'threatened species' by federal and state environmental regulators.
Engineer A and the firm's biologist in assessing the environmental impact of the proposed condominium development on the adjacent protected wetlands area
Establishes the regulatory status of the bird species as a 'threatened species' recognized by federal and state environmental regulators, creating the legal context within which Engineer A's omission from the public authority report must be evaluated.
Threatened Species Protection Regulatory Framework Compliance Constraint — Engineer A
The bird species identified by the firm biologist was classified as a 'threatened species' by federal and state environmental regulators, triggering regulatory framework obligations that constrained Engineer A's ability to omit the finding from the written report.
Engineer A was constrained by federal and state regulatory frameworks governing threatened species protection — including the Endangered Species Act's protections for 'threatened' species — to recognize and disclose the threatened species habitat risk in the written environmental report submitted to the public authority, establishing that the regulatory classification of the bird species as 'threatened' created a legally cognizable environmental concern that the engineer could not professionally ignore or omit.
Endangered Species Act (16 U.S.C. § 1531 et seq.) — threatened species protections; applicable state environmental regulatory frameworks; NSPE Code Section I.1
Project status elevated from routine analysis to environmentally sensitive review; Engineer A now possesses knowledge of a material environmental risk that must be disclosed to all relevant parties including the public authority
During property analysis, prior to report submission
A biologist on Engineer A's team identifies a potential threat to a 'threatened' bird species in the adjacent protected wetlands during the property analysis. This discovery transforms a routine development analysis into an environmentally sensitive situation with regulatory and ethical implications.
VWX Architects and Engineers Prime Consultant
{'entity_type': 'Architectural-Engineering Firm', 'project_role': 'Prime consultant with overall project responsibility', 'authority': 'Direction of sub-consultants and scope of formal deliverables'}
Retained by a public agency to perform a major scheduled overhaul of a bridge; retained Engineer A as sub-consultant for pavement inspection; received verbal report of out-of-scope wall defect observation from Engineer A; transmitted information to the public agency; directed Engineer A not to include the information in the final report since it was outside scope.
{'type': 'client', 'target': 'Public Agency'}
{'type': 'employer_of_sub_consultant', 'target': 'Engineer A Bridge Sub-Consultant'}
{'type': 'intermediary_to', 'target': 'Public Agency'}
Prime Consultant Bridge Overhaul Engineer
VWX Architects and Engineers retained the services of Engineer A, a civil engineer, as its subconsultant
VWX Architects and Engineers, who then contacted Engineer A and asked Engineer A not to include this additional information in his final report
Client would be aware of the concern but could choose to ignore it without a written record
Engineer A's professional reporting obligations under NSPE Code Section II.3.a. would remain unfulfilled
Public authority reviewing the development proposal would remain uninformed
Faithful communication with client as agent/trustee
Partial fulfillment of duty to inform client of material findings affecting the project
Minimum disclosure as a compromise between competing obligations
Satisfy a perceived minimum disclosure obligation to the client while avoiding formal documentation of an adverse finding that could complicate the developer's project approval
NSPE Code Section II.3.a., obligation to be objective and truthful in professional reports and to include all relevant and pertinent information
NSPE Code Section III.2.d., encouragement to adhere to sustainable development principles protecting the environment for future generations
Obligation to hold paramount public health, safety, and environmental welfare over client interests
Obligation to provide complete and accurate information to the public authority reviewing the development proposal
Client communication and advisory skills
Environmental engineering judgment to assess significance of threatened species concern
Knowledge of professional reporting obligations under the NSPE Code
During subsequent client discussions, after biologist's internal report and before written report submission
In subsequent discussions with the developer client, Engineer A chose to verbally mention the biologist's concern about the threatened bird species rather than formally documenting it or escalating it to a written recommendation. This oral disclosure was Engineer A's primary, and ultimately insufficient, mechanism for communicating a material environmental finding to the client.
Wetland Delineation Professional Practice Standard - Adjacent Wetlands Analysis
Environmental engineering professional community and regulatory guidance
Professional norms governing environmental engineering analysis of properties adjacent to protected wetlands areas
Wetland Delineation Professional Practice Standard
Engineer A is a principal in an environmental engineering firm and is requested by a developer client to prepare an analysis of a piece of property adjacent to a wetlands area for potential development as a residential condominium.
Engineer A and the firm's biologist during the environmental analysis of the property
Governs the scope and obligations of Engineer A's firm in conducting the environmental analysis of the property adjacent to the protected wetlands area, including the obligation to report all material findings identified during the analysis.
An incomplete official record now exists before the public authority; the regulatory review process proceeds on a materially deficient information base; Engineer A's omission is now formalized and actionable as a professional ethics violation
After verbal disclosure to client; at conclusion of analysis engagement
Engineer A's written report on the property analysis is formally submitted to the public authority reviewing the development proposal, without inclusion of the threatened species finding. This submission constitutes an official record that the public authority will rely upon in its regulatory decision-making.
Written Report Submitted to Authority → Public Authority Review Initiated
Engineer A's written report on the property analysis is formally submitted to the public authority, which then begins its formal review of the development proposal based on the submitted materials
Without the submission of the written report, the public authority review would not have been initiated in this form; the review was directly triggered by and dependent upon the submitted report
Formal submission of the written report to the public authority
Public authority's jurisdiction over the development proposal
Regulatory framework requiring authority review of such development proposals
Report's status as the primary evidentiary basis for the review
Formal report submission + regulatory jurisdiction + standard review procedures = initiation of public authority review
Defeasibility edge from constraintstatement
source_field=constraintstatement; confidence=0.8
Engineer A in BER Case 97-13 was constrained to follow through to ensure that correct corrective action was taken by the public agency within a relatively short period of time regarding the apparent preexisting wall defect — prohibiting Engineer A from treating the verbal report to the client and the client's verbal report to the public agency as a complete discharge of the professional obligation without monitoring for actual corrective action.
source_field=constraintstatement; confidence=0.83
source_field=constraintstatement; confidence=0.82
Engineer A in BER Case 97-13 was constrained from including the speculative structural wall defect observation in the final written report because the observation was based on general surmise and visual inspection without structural engineering expertise, and the scope of work was limited to pavement damage identification — establishing that the competence boundary and speculative nature of the observation rendered inclusion in the final report impermissible, while the field notes preservation obligation remained.
source_field=constraintstatement; confidence=0.88
Engineer A in BER Case 97-13 was constrained from altering or destroying field notes documenting the observed apparent preexisting wall defect condition, even though the observation was excluded from the final written report — establishing that the field notes preservation obligation persisted regardless of the scope limitation and client instruction to omit the observation from the final report.
Defeasibility edge from tensionresolution
source_field=tensionresolution; confidence=0.85
Engineer A's environmental engineering expertise and biologist consultation establish sufficient factual certainty to require formal written report inclusion, overriding any scope-of-work or client preference arguments for omission
source_field=constraintstatement; confidence=0.92
source_field=tensionresolution; confidence=0.88
The duty of objective completeness to the public regulatory authority supersedes the client's interest in a favorable or minimally adverse written submission; the engineer cannot discharge this duty through verbal-only disclosure to the client
source_field=constraintstatement; confidence=0.9
Engineer A was prohibited from treating the verbal mention of the threatened species concern to the developer client as a substitute for including that finding in the written report submitted to the public authority — because the public authority's independent interest in complete environmental information creates a non-waivable written disclosure obligation that client verbal acknowledgment cannot discharge.
The absence of any client confidentiality claim removes the primary competing obligation, leaving Engineer A's public welfare and objectivity obligations unimpeded and requiring formal written report inclusion
source_field=tensionresolution; confidence=0.9
The factual certainty of the threatened species finding, established through environmental engineering expertise and biologist consultation, requires formal written report inclusion, overriding any argument that the finding is too uncertain to warrant formal disclosure
source_field=tensionresolution; confidence=0.95
The faithful agent obligation yields to the engineer's independent ethical obligations when client preferences conflict with the duty to provide complete and objective professional reports to public regulatory authorities
Public welfare obligation overrides client preference to suppress or minimize adverse environmental findings in the written regulatory submission; verbal disclosure to the client does not discharge the obligation to the public regulatory process
source_field=tensionresolution; confidence=0.93
Public welfare paramount obligation, reinforced by sustainable development obligations and objectivity requirements, overrides client preference to suppress the threatened species finding from the formal written report
source_field=constraintstatement; confidence=0.93
Engineer A's faithful agent obligation to the developer client did not extend to suppressing a confirmed threatened species finding from the written report submitted to the public authority — establishing that the faithful agent duty is bounded by the paramount public welfare obligation and does not authorize omission of material environmental findings from public authority submissions at client direction.
source_field=tensionresolution; confidence=0.87
The objectivity and completeness obligation under Section II.3.a. supersedes any client preference to suppress the threatened species finding, requiring Engineer A to include it in the written report and advise the client of its inclusion
Engineer A's obligation to include the threatened species finding in the written public authority report was reinforced by NSPE Code Section III.2.d.'s encouraged sustainable development provision — even though the July 2007 modification to 'encouraged' language means the provision does not create mandatory task-refusal authority — because the encouraged provision interacts with and reinforces the mandatory objective completeness obligation under Section II.3.a., and because the provision places additional responsibilities on engineers for environmental protection that were not present in prior precedents.
Environmental stewardship obligations reinforce rather than conflict with the public welfare paramount principle; both require full written disclosure of the threatened species finding to the public regulatory authority
Environmental stewardship obligations reinforce public welfare and objectivity obligations, collectively overriding any client preference to suppress the threatened species finding from the formal written report
The faithful agent obligation is subordinated to the public welfare and regulatory completeness obligations when the client's interests conflict with full written disclosure to the public authority
source_field=constraintstatement; confidence=0.95
Engineer A was prohibited from omitting the firm biologist's finding that the condominium project could threaten a bird species classified as 'threatened' by federal and state environmental regulators from the written report submitted to the public authority — regardless of the species' non-endangered classification and regardless of the client's preference for omission — because the engineer's obligation to include all relevant and pertinent environmental information in public authority reports is not conditioned on the species having achieved formal 'endangered' status.
Engineer A was required to include all relevant and pertinent factual information — including the firm biologist's threatened species finding — in the written report submitted to the public authority, and was prohibited from selectively omitting that confirmed environmental finding even though it had been verbally communicated to the client.
source_field=tensionresolution; confidence=0.96
Sustainable development advocacy in this context is discharged through complete written disclosure of the threatened species finding rather than through project refusal; the omission of the finding from the written report fails even this minimum sustainable development obligation
source_field=tensionresolution; confidence=0.94
The threatened species finding is not confidential client business information but rather an environmental condition of the property that is directly material to the public authority's regulatory decision; the engineer's obligation to include it in the written report is not overridden by client loyalty or confidentiality
The sequential confrontation-then-escalation framework preserves both the client's right to cure and the engineer's obligation to protect the public — the client's failure to act within a reasonable time triggers the escalation obligation
source_field=constraintstatement; confidence=0.87
Engineer A in BER Case 04-8 was constrained to contact the client upon incidentally observing unpermitted wetland fill, inquire about the actions, point out the legal violation, and direct the client to take remedial steps in full compliance with applicable environmental laws — prohibiting Engineer A from remaining silent about the observed environmental law violation on the grounds that the observation occurred after completion of the wetland delineation contract.
Engineer A's written report submitted to the public authority creates a materially incomplete and therefore misleading professional representation by omitting the threatened species finding — a finding that the firm's own biologist identifi
Engineer A's biologist, while performing contracted environmental assessment services, identified a threatened species on the property — an observation incidental to but arising within the contracted scope — creating an obligation to disclo
The firm's biologist appropriately reported the threatened species observation to Engineer A — the principal — without independently filtering or suppressing the information based on a personal assessment of its materiality or the client's
Although Engineer A's scope of work in BER 97-13 was solely to identify pavement damage, the Board found that scope limitations did not authorize suppression of the wall defect observation from field notes, and by analogy, scope limitations
NSPE Code Section III.2.d., as modified in July 2007, places an obligation on Engineer A as an environmental engineer to adhere to sustainable development principles when conducting environmental assessments adjacent to wetlands, strengthen
Engineer A's obligation to include the threatened species finding in the formal written environmental assessment report submitted to the public authority — rather than merely disclosing it verbally to the client — reflects the principle tha
Engineer A's environmental assessment of property adjacent to a protected wetlands area for residential condominium development activates the environmental stewardship obligation to consider and protect the ecological resources — including
Engineer A's obligation as an environmental engineer to protect environmental resources — including threatened species and adjacent wetlands — requires inclusion of the threatened species finding in the formal written report, reinforcing th
The Board distinguishes the present case from BER 97-13 on the basis that the threatened species finding is not based on surmise or speculation — unlike the wall defect observation in BER 97-13 which was based entirely on visual inspection
Engineer A's role as a principal in an environmental engineering firm engaged in assessing a development adjacent to a protected wetlands area activates the sustainable development obligation to consider and advocate for the protection of e
Engineer A received a material finding from the firm's biologist that the proposed condominium development could threaten a bird species recognized as 'threatened' by federal and state environmental regulators, verbally disclosed this conce
Engineer A's obligation under NSPE Code Section II.3.a. to be objective and truthful in professional reports and include all relevant and pertinent information requires inclusion of the threatened species finding in the written environmenta
Engineer A's omission of the threatened species finding from the written report submitted to the public authority compromises the public authority's ability to make an informed regulatory decision about a development that could harm a feder
Because the developer client was not even aware of the threatened species finding prior to Engineer A bringing it to the client's attention, and never directly requested that Engineer A maintain it as confidential, the confidentiality ratio
The Board distinguishes the present case from BER 97-13 on the basis that Engineer A in the present case has domain expertise as an environmental engineer confirmed by a qualified biologist, whereas Engineer A in BER 97-13 lacked structural
Engineer A's written report submitted to the public authority omits the material finding — reported by the firm's own biologist — that the condominium project could threaten a federally and state-recognized threatened bird species in the ad
The Board invokes the paramount public welfare obligation to resolve the tension between Engineer A's duty as faithful agent to the developer client and the obligation to include threatened species findings in the formal written report subm
In BER Case No. 04-8, the Board required Engineer A to first contact the client about the illegal wetland fill, point out the violation, demand remediation in compliance with applicable laws, and only escalate to regulatory authorities if t
Engineer A's faithful agent obligation to the developer client — which would ordinarily support compliance with client preferences about report content — is bounded by the ethical limits imposed by public welfare obligations, objectivity re
Engineer A's role as the developer client's retained environmental engineering firm creates a faithful agent obligation to serve the client's development interests, but this obligation is bounded by the ethical duty to include all material
Engineer A was obligated under NSPE Code Section II.3.a. to be objective and truthful in the written environmental assessment report submitted to the public authority and to include all relevant and pertinent information — including the thr
Engineer A was obligated to be objective and truthful in the written report submitted to the public authority and to include all relevant and pertinent information — including the firm biologist's threatened species finding — in that report
Engineer A was obligated to advise the developer client that the threatened species finding would be included in the written environmental assessment report submitted to the public authority, so that the client had advance notice of the inc
Engineer A was obligated to recognize that NSPE Code Section III.2.d., as amended in July 2007, establishes an encouragement to adhere to sustainable development principles — not a strict mandatory obligation — while still treating those pr
Engineer A was obligated to hold paramount the public welfare — including the ecological welfare of the protected wetlands and the threatened bird species — by ensuring that the public authority received complete information about the threa
Engineer A was obligated to include the firm biologist's finding that the condominium project could threaten a bird species classified as 'threatened' by federal and state environmental regulators in the written report submitted to the publ
Engineer A's faithful agent obligation to the developer client was bounded by the paramount public welfare obligation and the objective completeness obligation under NSPE Code Section II.3.a., such that the faithful agent duty did not autho
Engineer A was obligated to serve the developer client faithfully as a retained environmental engineering firm, but only within the bounds of professional ethics — meaning the faithful agent duty did not authorize omission of the threatened
The firm biologist was obligated to report the threatened species observation to Engineer A — the principal — without independently filtering or withholding the finding based on the biologist's own assessment of its materiality or regulator
Engineer A was obligated to follow through to ensure that correct corrective action was taken by the public agency within a relatively short period of time following the verbal notification through the client chain, and would have been obli
Engineer A was obligated to preserve the observation of the apparent preexisting defective bridge wall condition in engineering field notes without alteration, even after agreeing not to include the information in the formal written report
Engineer A was obligated to recognize and defer to VWX Architects and Engineers' superior position as prime consultant to assess the interrelationships between various project elements — including the history of previous work on the bridge,
Engineer A, as a civil engineer without structural engineering expertise whose observation of the bridge wall defect was based on general surmise and visual inspection, was obligated to refrain from including the speculative assessment in t
Engineer A was obligated to recognize that the professional duty to include environmental risk findings in written reports submitted to public authorities extends to species classified as 'threatened' — not only 'endangered' — and to includ
Engineer A was obligated, if the client failed to take appropriate steps to remedy the unauthorized wetland fill violation, to bring the matter to the attention of the appropriate federal and state environmental regulatory authorities, notw
Engineer A was obligated to contact the client, inquire about the unauthorized wetland fill actions, point out that the actions constituted a violation of federal and state environmental laws, and advise that steps needed to be taken to rem
Engineer A was obligated to actively consider and integrate sustainable development principles — including protection of threatened species and adjacent protected wetlands — into the environmental analysis and written report, and to ensure
Engineer A was obligated to recognize that verbally mentioning the threatened species concern to the developer client did not satisfy the obligation to include that finding in the written report submitted to the public authority, and to ens
Engineer A was obligated to apply environmental stewardship principles in conducting the environmental assessment of property adjacent to a protected wetlands area, including ensuring that the firm biologist's threatened species finding was
Engineer A was obligated to recognize that the developer client had not affirmatively invoked confidentiality over the threatened species finding — because the client was not even aware of the finding prior to Engineer A bringing it to the
Engineer A, as an environmental engineer with consultation by a qualified biologist, was obligated to include the threatened species finding in the written environmental assessment report submitted to the public authority, because the findi
Engineer A was obligated to refrain from treating the verbal mention of the threatened species concern to the developer client as a substitute for inclusion of that finding in the written report submitted to the public regulatory authority,
Engineer A BER 04-8 Unpermitted Wetland Fill — Client Contact and Remediation Direction
Engineer A completed wetland delineation services; subsequently drove by client's property and observed substantial unpermitted fill across more than half an acre of wetlands; Board established appropriate course of action including client contact and remediation direction
Environmental Law Incidental Observation Client Inquiry Constraint
NSPE Code of Ethics; BER Case No. 04-8 analysis
Engineer A should contact the client and inquire about the actions the client had taken and point out the actions were a violation of the law and that steps needed to be taken to remedy the violation or obtain a variance from the proper authorities.
Following Engineer A's incidental observation of unpermitted wetland fill after completion of wetland delineation services in BER Case 04-8
the engineer should advise that the remedial actions should be in full compliance with all applicable environmental laws and regulations, which may include review by a licensed engineer.
Engineer A BER 97-13 Field Notes Preservation Non-Alteration — Structural Observation
Engineer A observed apparent preexisting wall defect; noted in engineering field notes; VWX and public agency requested omission from final report; Board established that field notes must be preserved without alteration
Intentional Information Disregard Prohibition Constraint
NSPE Code of Ethics; BER Case No. 97-13 analysis
Throughout and after Engineer A's bridge inspection engagement in BER Case 97-13
Engineer A Sustainable Development Encouraged Provision — Threatened Species Report Inclusion Reinforcement
NSPE Code Section III.2.d. modified from 'shall strive to adhere' to 'are encouraged to adhere' in July 2007; Board reviewing as matter of first impression; provision applied to reinforce Engineer A's obligation to include threatened species finding in public authority report
Sustainable Development Encouraged Provision Non-Mandatory Task Refusal Boundary Constraint
NSPE Code of Ethics Section III.2.d. (as modified July 2007); NSPE Code Section II.3.a.; BER Case analysis applying Section III.2.d. to present case
At the time Engineer A prepared the written environmental assessment report for submission to the public authority, after July 2007 modification of Section III.2.d.
Threatened Species Non-Endangered Written Report Inclusion Constraint — Engineer A Condominium Development Case
Engineer A prepared an environmental analysis for a developer client proposing a residential condominium adjacent to a protected wetlands area. The firm's biologist identified a threatened bird species in the adjacent wetlands. Engineer A verbally mentioned the concern to the client but omitted it from the written report submitted to the public authority.
Threatened Species Non-Endangered Environmental Report Inclusion Constraint
NSPE Code of Ethics Section II.3.a; NSPE Code Section I.1 (public welfare paramount); BER Case precedent on environmental report completeness
At the time of preparing and submitting the written report to the public authority considering the developer's proposal
BER 04-8 Post-Service Environmental Violation Discovery
From Engineer A's incidental observation of fill material through client confrontation and potential regulatory reporting
he drove by his client's property and noticed that the client had installed a substantial amount of fill material on more than half an acre across a portion of the wetlands without any permits, variances, or permissions
Post-Service Client Regulatory Violation Discovery State
Engineer A's incidental discovery of unpermitted wetland fill by client after completion of wetland delineation services
Client taking adequate corrective action or Engineer A reporting to appropriate authorities
If appropriate steps were not taken by the client, Engineer A had an obligation to bring the matter to the attention of the appropriate authorities
The installation of the fill material was a substantial violation of the federal and state laws and regulations
Engineer A driving by client's property and observing substantial unpermitted fill across wetlands after completion of contracted services
BER 04-8 Unpermitted Wetland Fill Violation
From installation of fill material through client remediation or regulatory enforcement
the client had installed a substantial amount of fill material on more than half an acre across a portion of the wetlands without any permits, variances, or permissions
Unpermitted Wetland Fill Violation State
Client's installation of substantial fill material across wetlands without required permits in BER Case No. 04-8
Client obtains required permits or variances, or regulatory authority takes enforcement action
Client's installation of fill material on more than half an acre of delineated wetlands without permits, variances, or permissions
BER 97-13 Engineer A — Speculation-Based Structural Observation Outside Competence
From Engineer A's visual observation of apparent wall defect through Board determination that omission from formal report was permissible given speculative basis and competence gap
Engineer A surmised that the defective condition may have been a contributing factor in the wall failure
Speculation-Confirmed Violation Distinction State
Engineer A's speculative visual observation of potential wall defect in BER Case No. 97-13, made outside structural engineering competence
Board determination that omission from formal report was appropriate given speculative basis, with obligation to follow through on corrective action by public agency
Engineer A's observation appeared to be based upon a visual inspection without anything more, and the facts did not indicate that Engineer A had expertise in structural engineering
there was nothing under the facts to indicate anything more than Engineer A's general surmise and speculation about the cause of the structural failure of the wall
Engineer A's visual observation of apparent preexisting defective condition in bridge wall, without structural engineering expertise and without testing or evaluation
Client-Interest vs. Public-Interest Conflict — Environmental Finding Omission
From Engineer A's discovery of threatened species habitat through client's implicit or explicit instruction not to include the finding in the final report
Engineer A, therefore, had an obligation to include it in the written report and advise the client of its inclusion
Client-Interest vs. Public-Interest Open Conflict State
Engineer A's obligation to include threatened species habitat finding in written report versus client's preference for omission
Board determination that Engineer A had obligation to include finding in written report and advise client of inclusion
It would be reasonable to assume that the public authority approving the development would be interested in this information
There does not appear to be any indication of an effort on the part of the client to treat the information as confidential
Engineer A's discovery of threatened species habitat adjacent to development site and client's failure to affirmatively request confidentiality combined with implicit pressure to omit
Engineer A Faithful Agent Boundary — Post-Confirmed Finding
From Engineer A's confirmed finding through resolution of tension between client preference and public reporting obligation
engineers play an essential role in society by taking steps and actions to see that products, systems, facilities, structures, and the land surrounding them are reasonably safe
Engineer A's obligation to act as faithful agent to client while simultaneously fulfilling public reporting obligation by including confirmed environmental finding in report
Board determination that faithful agent duty does not extend to omitting confirmed, material findings from professional reports
Engineers, in the performance of their professional services, act as 'agents' or 'trustees' to their clients
Sometimes engineers are placed in situations where they must balance the extent of their obligations to their employer or client with their obligations to protect the public health and safety
Engineer A's confirmed finding of threatened species habitat creating tension between faithful agent duty and public reporting obligation under NSPE Code Section II.3.a.
Environmental Hazard from Condominium Development Adjacent to Protected Wetlands
From the biologist's identification of the threatened species risk through any project redesign, abandonment, or regulatory mitigation
The proposed condominium development site adjacent to protected wetlands containing a threatened bird species
Project redesign eliminating the threat, project abandonment, or regulatory imposition of protective conditions
Biologist's report that the condominium project could threaten a bird species inhabiting the adjacent protected wetlands
Faithful Agent Boundary Constraint — Engineer A Post-Confirmed Environmental Finding
Engineer A's role as faithful agent to the developer client was bounded by the obligation to submit a complete and objective written report to the public authority, prohibiting the use of faithful agent obligations as justification for omitting the threatened species finding.
Faithful Agent Disclosure Scope Limitation Constraint
NSPE Code of Ethics Section II.4 (faithful agent); NSPE Code Section I.1 (public welfare paramount); NSPE Code Section II.3.a (objective and complete reporting)
{'credential': 'Biologist (non-engineer specialist)', 'finding': 'Condominium project could threaten a threatened bird species in adjacent protected wetlands', 'reporting_channel': 'Internal report to Engineer A (firm principal)'}
A biologist employed by Engineer A's environmental engineering firm who, during the property analysis, identified and reported to Engineer A the professional opinion that the condominium project could threaten a bird species inhabiting the adjacent protected wetlands area; the biologist's finding is the triggering event for Engineer A's ethical obligations.
{'type': 'reports_to', 'target': 'Engineer A Environmental Firm Principal'}
Honesty in Professional Representations Violated by Written Report Omission
Written environmental assessment report submitted to public authority
Engineer A's written report submitted to the public authority creates a materially incomplete and therefore misleading professional representation by omitting the threatened species finding — a finding that the firm's own biologist identified and reported to Engineer A — thereby presenting the public authority with a written assessment that does not accurately reflect the firm's complete professional findings
Honesty in professional representations encompasses not only the avoidance of affirmative false statements but also the avoidance of material omissions that render a written professional report misleading in its overall impression; the omission of the threatened species finding from the written regulatory submission violates the honesty principle even though Engineer A verbally mentioned the concern to the client
Engineer A verbally mentions the concern, but Engineer A does not include the information in a written report that will be submitted to a public authority that is considering the developer's proposal
The honesty obligation to the public authority and to the integrity of the professional work product overrides any implicit client preference for a written report that minimizes adverse environmental findings
NSPE Code Section III.2.d. Encouraged Language Ambiguity
From July 2007 modification of Section III.2.d. from 'shall' to 'are encouraged' through Board of Ethical Review first-impression analysis
Encouraged vs Mandatory Code Provision Tension State
NSPE Code Section III.2.d. sustainable development provision as modified in July 2007
Board of Ethical Review issuance of interpretive opinion treating encouraged provision as supplementary to mandatory provisions
the NSPE Board of Ethical Review will review this language as a matter of first impression and in the context of other language in the NSPE Code and earlier NSPE Board of Ethical Review Opinions
NSPE House of Delegates vote in July 2007 modifying mandatory 'shall' language to encouraged 'are encouraged' language in Section III.2.d.
Present Case Engineer A — Competence-Confirmed Environmental Finding
From Engineer A's completion of environmental assessment through Board determination of reporting obligation
as an environmental engineer with consultation by an apparently qualified biologist, it appears that Engineer A has technical competence concerning the matter in question
Engineer A's technically confirmed threatened species habitat finding, made within domain competence with specialist consultation, contrasted with BER 97-13 speculative observation
Board determination that confirmed, competence-supported finding must be included in written report
While further study may be warranted, it appears that the facts are relatively unambiguous and obvious
unlike BER Case No. 97-13, there is nothing in the facts that the conclusions reached are based upon surmise or speculation
Engineer A's confirmed finding of threatened species habitat, supported by environmental engineering competence and qualified biologist consultation, with no speculative basis
Present Case Threatened Species Habitat Proximity Development
From Engineer A's discovery of threatened species habitat through inclusion in written report and regulatory authority notification
Engineer A's discovery of threatened species habitat adjacent to client's proposed development site
Inclusion of finding in written report submitted to public regulatory authority
Engineer A's environmental assessment, with qualified biologist consultation, confirming presence of threatened species habitat adjacent to development site
Scope Limitation Defense Rejected for Environmental Finding
Threatened species finding in present case
Faithful Agent Obligation Within Ethical Limits
Although Engineer A's scope of work in BER 97-13 was solely to identify pavement damage, the Board found that scope limitations did not authorize suppression of the wall defect observation from field notes, and by analogy, scope limitations in the present case do not authorize omission of the threatened species finding from the formal written report when Engineer A has domain expertise and factual certainty
Scope limitations define the boundaries of required investigation but do not authorize suppression of material findings already made — the ethical obligation to include material findings in formal reports persists regardless of whether those findings arose within or outside the contracted scope
Scope-of-Work Limitation as Incomplete Ethical Defense
VWX Architects and Engineers, who then contacted Engineer A and asked Engineer A not to include this additional information in his final report since it was not part of his scope of work.
In BER 97-13, scope limitations combined with lack of expertise and speculative basis justified field note documentation and verbal notification only; in the present case, domain expertise and factual certainty override scope limitations to require formal written report inclusion
Engineer A's scope of work was solely to identify any pavement damage on the bridge and report the damage to VWX for further review and repair.
Verbal Client Mention Non-Substitution Written Public Authority Report Constraint — Engineer A
Engineer A verbally mentioned the threatened species concern to the developer client in subsequent discussions but did not include the finding in the written report submitted to the public authority reviewing the development proposal.
Client Verbal Mention Non-Substitution for Public Authority Written Disclosure Obligation
In subsequent discussions with the developer client, Engineer A verbally mentions the concern, but Engineer A does not include the information in a written report that will be submitted to a public authority that is considering the developer's proposal
Written Report Completeness Constraint — Engineer A Threatened Species Omission
Engineer A's written environmental report submitted to the public authority omitted the threatened species habitat finding that the firm's biologist had confirmed and that Engineer A had verbally mentioned to the developer client.
NSPE Code of Ethics Section II.3.a (objective and truthful in professional reports, include all relevant and pertinent information); NSPE Code Section I.1
At the time of preparing and submitting the written environmental analysis report to the public authority
Engineer A BER 97-13 Speculative Structural Observation — Scope Limitation and Competence Omission Permissibility
Engineer A retained as civil engineer subconsultant for bridge pavement inspection; observed apparent preexisting wall defect outside scope; observation based on visual inspection without structural engineering expertise; VWX and public agency requested omission from final report
Construction Safety Domain Competence Boundary Constraint
Engineer A's observation appeared to be based upon a visual inspection without anything more, and the facts did not indicate that Engineer A had expertise in structural engineering.
During and after Engineer A's bridge inspection services in BER Case 97-13
Under the circumstances, the Board concluded that it would have been improper for Engineer A to include reference to the information in his final report, particularly since it would have been based upon mere speculation and not careful testing or evaluation by a competent individual or firm.
Engineer A Environmental Principal Client Notification of Inclusion Current Case
Environmental assessment of property adjacent to protected wetlands; threatened species finding to be included in written report submitted to public authority; client had not been aware of the finding prior to Engineer A disclosing it
Engineer A (environmental engineering firm principal, current case)
Engineer A was obligated to advise the developer client that the threatened species finding would be included in the written environmental assessment report submitted to the public authority, so that the client had advance notice of the inclusion and could respond accordingly.
Prior to or contemporaneously with submission of the written report to the public authority
There does not appear to be any affirmative action on the part of the client to treat the information as confidential, since it appears that the client was not even aware of the situation prior to it being brought to the client's attention.
Engineer A Wetland Delineation Engineer BER 04-8
{'license': 'Professional Engineer — Environmental Engineering', 'specialty': 'Wetland delineation', 'case_reference': 'BER Case No. 04-8'}
Referenced from BER Case No. 04-8: performed wetland delineation services, subsequently discovered client had illegally filled wetlands without permits, bore obligation to contact client about the violation, advise on remediation, and report to appropriate authorities if client failed to act — cited as precedent for the present case's analysis of engineer reporting obligations.
{'type': 'consultant_to', 'target': 'Wetland Site Client'}
{'type': 'reporting_obligation_to', 'target': 'Appropriate Environmental Authorities'}
in BER Case No. 04-8, Engineer A, an environmental engineer, performed wetland delineation services on the client's wetland site.
Engineer A should contact the client and inquire about the actions the client had taken and point out the actions were a violation of the law
Firm Biologist Intern Epistemic Humility Materiality Deference Obligation Instance
The firm biologist identified that the condominium project could threaten a bird species classified as 'threatened' by federal and state regulators and appropriately reported this finding to Engineer A. The biologist fulfilled the upward reporting obligation; the ethical violation occurred at Engineer A's level in the decision not to include the finding in the written report.
Firm biologist (employee of Engineer A's environmental engineering firm)
Complete and Unfiltered Upward Reporting Obligation
The firm biologist was obligated to report the threatened species observation to Engineer A — the principal — without independently filtering or withholding the finding based on the biologist's own assessment of its materiality or regulatory significance, recognizing that the determination of whether to include the finding in the written report was properly Engineer A's professional judgment to make.
At the time of identifying the threatened species concern during the firm's analysis
BER 97-13 Confidentiality Instruction Suppressing Structural Observation
From VWX/agency instruction through Engineer A's agreement to retain information in notes only and Board determination
VWX Architects and Engineers, who then contacted Engineer A and asked Engineer A not to include this additional information in his final report since it was not part of his scope of work
Confidentiality Instruction Suppressing Safety Report State
VWX/public agency instruction to Engineer A not to include wall defect observation in final report in BER Case No. 97-13
Board determination that omission was permissible given speculative basis, with obligation to monitor corrective action
Engineer A stated that he would retain the information for his engineering notes but not include it in the final report, as requested
Public agency contacting VWX who then instructed Engineer A not to include wall defect observation in final report since it was outside scope of work
Client Interest vs. Public Interest Conflict Over Environmental Disclosure
From the biologist's internal report through the submission of the written report omitting the finding
Adjacent wetlands and threatened bird species
Engineer A's competing obligations to the developer client and to the public authority and general public
Not terminated — the conflict remains unresolved with the omission from the written report
Developer client's implicit or explicit preference not to include the threatened species finding in the report submitted to the public authority, in tension with Engineer A's obligation to disclose material environmental findings
Engineer A BER 97-13 Corrective Action Follow-Through Monitoring — Public Agency Bridge Wall
Engineer A verbally reported wall defect observation to client; client verbally reported to public agency; Board established that Engineer A had obligation to follow through to ensure corrective action was taken within a relatively short period of time
Client Remediation Monitoring Follow-Through Constraint
Following Engineer A's verbal report of the wall defect observation to the client in BER Case 97-13
{'license': 'Civil Engineer (Professional Engineer)', 'specialty': 'Civil engineering / bridge inspection (pavement scope)', 'competence_limitation': 'Not identified as having structural engineering expertise relevant to wall failure analysis', 'findings_basis': 'Visual inspection — characterized as surmise and speculation regarding wall failure causation'}
Retained by VWX Architects and Engineers as a sub-consultant solely to identify pavement damage on a bridge; while conducting inspection observed an apparent preexisting defective condition in the bridge wall near where a fatal accident occurred; verbally reported the observation to his client; documented it in engineering notes; agreed not to include it in the final written report at client's request; did not independently report to any other public agency.
{'type': 'client', 'target': 'VWX Architects and Engineers'}
{'type': 'indirect_client', 'target': 'Public Agency'}
{'type': 'sub_consultant_to', 'target': 'VWX Architects and Engineers'}
Scope-Limited Sub-Consultant Engineer with Incidental Safety Observation
VWX Architects and Engineers retained the services of Engineer A, a civil engineer, as its subconsultant to perform bridge inspection services on the bridge.
Engineer A noticed an apparent preexisting defective condition in the wall
Engineer A stated that he would retain the information for his engineering notes but not include it in the final report
Engineer A verbally reported this information to his client
Engineer A's scope of work was solely to identify any pavement damage on the bridge
Engineer A Environmental Principal Sustainable Development Code Calibration Current Case
Environmental assessment adjacent to protected wetlands; NSPE Code Section III.2.d. amended from 'shall strive' to 'are encouraged' in July 2007; Board reviewing the amended language as a matter of first impression
Sustainable Development Code Encouragement vs. Obligation Calibration Obligation
Engineer A was obligated to recognize that NSPE Code Section III.2.d., as amended in July 2007, establishes an encouragement to adhere to sustainable development principles — not a strict mandatory obligation — while still treating those principles as a weighty consideration in environmental engineering practice that informed the scope of disclosure obligations in the environmental assessment context, including the obligation to include the threatened species finding in the written report.
Thereafter, in July 2007, the NSPE House of Delegates voted to modify the language in NSPE Code Section III.2.d. to state that 'engineers are encouraged to adhere to the principles of sustainable development in order to protect the environment for future generations.'
At the time of conducting the environmental assessment and preparing the written report
Engineer A Non-Endangered Threatened Species Written Report Completeness Obligation Instance
The bird species identified by the firm biologist was classified as 'threatened' but not 'endangered' by federal and state environmental regulators. Engineer A omitted the finding from the written report submitted to the public authority, implicitly treating the non-endangered classification as a basis for omission.
Engineer A (principal, environmental engineering firm)
Non-Endangered Threatened Species Environmental Risk Disclosure Obligation
Engineer A was obligated to recognize that the professional duty to include environmental risk findings in written reports submitted to public authorities extends to species classified as 'threatened' — not only 'endangered' — and to include the biologist's threatened species finding in the written report regardless of the species' non-endangered classification.
At the time of preparing the written report for submission to the public authority
Engineer A Sustainable Development Threatened Species Advocacy Obligation Instance
Engineer A's role as principal in an environmental engineering firm conducting assessment of property adjacent to a protected wetlands area activated sustainable development obligations under NSPE Code III.2.d. The firm biologist's threatened species finding was directly relevant to sustainable development considerations that should have been reflected in the written report.
Sustainable Development Integration Obligation
Engineer A was obligated to actively consider and integrate sustainable development principles — including protection of threatened species and adjacent protected wetlands — into the environmental analysis and written report, and to ensure that the threatened species finding reported by the firm biologist was included in the written report submitted to the public authority as an expression of sustainable development advocacy.
Throughout the environmental analysis and at the time of preparing the written report
Engineer A Technically Confirmed Environmental Finding — Omission Instruction
From Engineer A's completion of environmental assessment with biologist consultation through client's implicit omission pressure and Board determination
Technically Confirmed Environmental Finding Omission Instruction State
Engineer A's confirmed threatened species habitat finding and client instruction or pressure to omit from final report
Board determination that Engineer A must include finding in report and advise client
Engineer A's technically confirmed finding of threatened species habitat, supported by domain competence and qualified biologist consultation, combined with absence of prior client confidentiality request
Engineer A Verbal-Only Disclosure Insufficiency Obligation Instance
Engineer A verbally mentioned the threatened species concern to the developer client in subsequent discussions but treated that verbal mention as sufficient, omitting the finding from the written report submitted to the public authority that was relying on the report for its regulatory decision.
Verbal-Only Disclosure Insufficiency for Public Authority Report Obligation
Engineer A was obligated to recognize that verbally mentioning the threatened species concern to the developer client did not satisfy the obligation to include that finding in the written report submitted to the public authority, and to ensure the written report reflected all material findings communicated verbally to the client.
At the time of preparing and submitting the written report to the public authority, following verbal discussions with the developer client
Incidental Observation Disclosure Obligation Applied to Threatened Species
Threatened species identified during environmental assessment of property adjacent to wetlands
Engineer A's biologist, while performing contracted environmental assessment services, identified a threatened species on the property — an observation incidental to but arising within the contracted scope — creating an obligation to disclose this finding not merely verbally to the client but formally in the written report submitted to the public authority
When an engineer or their qualified staff identifies a material environmental finding incidentally during contracted work, the disclosure obligation extends to formal written report inclusion when the engineer has domain expertise and the finding is factually certain
Incidental Observation Disclosure Obligation
The incidental observation disclosure obligation, calibrated by domain expertise and factual certainty, requires formal written report inclusion rather than mere verbal notification to the client
Intern Epistemic Humility and Materiality Deference Applied to Biologist Reporting
Internal reporting of threatened species observation to Engineer A
The firm's biologist appropriately reported the threatened species observation to Engineer A — the principal — without independently filtering or suppressing the information based on a personal assessment of its materiality or the client's likely reaction, thereby fulfilling the subordinate reporting obligation and placing the materiality determination with the licensed professional
The biologist's conduct in reporting the threatened species concern to Engineer A represents the correct application of the subordinate reporting obligation; the ethical failure in this case lies with Engineer A's subsequent decision not to include the finding in the written report, not with the biologist's reporting conduct
Intern Epistemic Humility and Materiality Deference Obligation
No tension at the biologist reporting level; the biologist correctly escalated the finding to the principal engineer, who then bore the obligation to include it in the written report
Sustainable Development Obligation Invoked in Environmental Assessment
Environmental assessment of property adjacent to wetlands for residential condominium development
NSPE Code Section III.2.d., as modified in July 2007, places an obligation on Engineer A as an environmental engineer to adhere to sustainable development principles when conducting environmental assessments adjacent to wetlands, strengthening the obligation to include threatened species findings in the formal written report
The addition of Section III.2.d. to the NSPE Code — even in its 'encouraged to adhere' form — provides additional ethical grounding for Engineer A's obligation to include threatened species findings in the formal written report, beyond the baseline objectivity and truthfulness obligations of Section II.3.a.
Sustainable Development Advocacy Obligation
The sustainable development obligation reinforces the public welfare and objectivity obligations, collectively overriding any client preference to suppress the threatened species findings from the formal written report
Undisclosed Threatened Species Risk in Public Authority Report
From the point of report submission omitting the finding through any subsequent correction or disclosure
Public authority making the development decision
The omission of the threatened species risk finding from the written report submitted to the public authority
Not terminated — the public authority has not been informed of the threatened species risk through the written report
Engineer A submits a written report to the public authority without including the biologist's finding regarding the threatened bird species
Verbal-Only Threatened Species Advisory Without Written Record
From Engineer A's verbal mention of the concern to the developer through submission of the written report omitting the finding
Verbal-Only Safety Advisory Without Written Record State
Engineer A's communication of the threatened species risk to the developer client
Not terminated — no written record of the finding exists in the report submitted to the public authority
Engineer A verbally mentions the threatened species concern to the developer client but does not document it in the written report submitted to the public authority
Environmental Stewardship Invoked in Wetlands Adjacent Development Assessment
Environmental analysis of property adjacent to wetlands for residential condominium development
Engineer A's environmental assessment of property adjacent to a protected wetlands area for residential condominium development activates the environmental stewardship obligation to consider and protect the ecological resources — including the threatened bird species habitat — that the proposed development may affect, requiring that findings about potential threats to those resources be fully disclosed in the professional work product
Environmental stewardship in this context requires not merely conducting the analysis but ensuring that the findings of that analysis — including adverse findings about threatened species — are communicated completely and accurately in the written professional report, bridging the technical engineering practice with the broader environmental and societal responsibilities the principle embodies
Environmental Stewardship in Engineering Practice
Environmental Stewardship Obligation Applied to Threatened Species Reporting
Engineer A's obligation as an environmental engineer to protect environmental resources — including threatened species and adjacent wetlands — requires inclusion of the threatened species finding in the formal written report, reinforcing the objectivity and sustainable development obligations that collectively mandate complete disclosure to the public regulatory authority
Environmental stewardship obligations are not merely aspirational — they provide substantive ethical grounding for the engineer's obligation to include environmental findings in formal reports, particularly when the findings relate to protected species and the report will inform regulatory decision-making
'sustainable development' is 'the challenge of meeting human needs for natural resources, industrial products, energy, food, transportation, shelter, and effective waste management while conserving and protecting environmental quality and the natural resources base essential for future development'
Factual Certainty Calibration Present Case vs BER 97-13
Threatened species finding in environmental assessment report
The Board distinguishes the present case from BER 97-13 on the basis that the threatened species finding is not based on surmise or speculation — unlike the wall defect observation in BER 97-13 which was based entirely on visual inspection — establishing that the factual certainty of the present observation requires formal written report inclusion rather than mere field note documentation
The epistemic status of an observation — whether it is speculative or factually grounded — determines the appropriate form of disclosure: speculative observations warrant field notes and verbal notification, while factually certain observations warrant formal written report inclusion
Factual Certainty vs. Speculation Distinction in Disclosure Obligation Calibration
Further, unlike BER Case No. 97-13, there is nothing in the facts that the conclusions reached are based upon surmise or speculation. While further study may be warranted, it appears that the facts are relatively unambiguous and obvious.
Similarly, in BER Case No. 97-13, the engineer's evaluation was based upon general surmise and speculation about the cause of the structural failure of the wall, based entirely upon a visual inspection without anything more.
Sustainable Development Obligation Applied to Threatened Species Finding
Environmental assessment for residential condominium development adjacent to wetlands
Engineer A's role as a principal in an environmental engineering firm engaged in assessing a development adjacent to a protected wetlands area activates the sustainable development obligation to consider and advocate for the protection of environmental resources — including threatened species — that the proposed development may adversely affect, requiring at minimum that findings about such threats be formally documented in the written professional report
The sustainable development obligation in this context does not require Engineer A to refuse the engagement or advocate against all development, but does require that the professional work product honestly and completely reflect the environmental findings — including the threatened species concern — so that the public authority and the client can make informed decisions about how to proceed
Threatened Species Environmental Reporting Obligation Violated by Engineer A
Environmental assessment report for residential condominium development adjacent to protected wetlands
Engineer A received a material finding from the firm's biologist that the proposed condominium development could threaten a bird species recognized as 'threatened' by federal and state environmental regulators, verbally disclosed this concern to the developer client, but failed to include the finding in the written report submitted to the public authority — thereby omitting a material environmental finding from the formal regulatory record on the grounds that the species had not reached 'endangered' status
The 'threatened' designation by both federal and state environmental regulators establishes that the species is a matter of recognized public environmental concern; the threshold for written disclosure in a regulatory submission is not limited to 'endangered' species but encompasses all species with recognized regulatory protection status — the engineer's obligation to the public regulatory process requires inclusion of this finding in the written report regardless of the client's development interests
Threatened Species Environmental Reporting Obligation
Engineer A Bridge Sub-Consultant Corrective Action Follow-Through Monitoring BER 97-13
Bridge inspection sub-consultancy; Engineer A verbally reported the wall defect observation to the client who reported to the public agency; Engineer A agreed not to include the finding in the formal report; corrective action by the public agency was the condition for ethical non-reporting to external authorities
Engineer A (civil engineer, bridge sub-consultant, BER 97-13)
Corrective Action Follow-Through Monitoring Obligation
Engineer A was obligated to follow through to ensure that correct corrective action was taken by the public agency within a relatively short period of time following the verbal notification through the client chain, and would have been obligated to report to public authorities if corrective action was not taken within that period.
Following verbal notification through the client chain, for a relatively short monitoring period
Engineer A Bridge Sub-Consultant Field Notes Preservation Non-Alteration BER 97-13
Bridge inspection sub-consultancy; Engineer A agreed to retain information in engineering notes but not include it in the final report; client requested exclusion from formal report
Field Notes Preservation Non-Alteration Obligation
Engineer A was obligated to preserve the observation of the apparent preexisting defective bridge wall condition in engineering field notes without alteration, even after agreeing not to include the information in the formal written report at the client's request.
Ongoing from the time of the observation through all subsequent proceedings
Engineer A Bridge Sub-Consultant Prime Consultant Deference BER 97-13
Bridge inspection sub-consultancy; VWX Architects and Engineers was the prime consultant with overall project responsibility; Engineer A was retained solely for pavement inspection; the prime consultant had superior knowledge of project history and interrelationships
Prime Consultant Interrelationship Assessment Deference Obligation
Engineer A was obligated to recognize and defer to VWX Architects and Engineers' superior position as prime consultant to assess the interrelationships between various project elements — including the history of previous work on the bridge, prior consultants, and contractors — when determining the appropriate response to the out-of-scope wall defect observation, while still fulfilling the duty to communicate the observation verbally through the client chain and preserve it in field notes.
At the time of deciding how to respond to the out-of-scope wall defect observation
Engineer A Environmental Stewardship Wetlands Adjacent Assessment Obligation Instance
Engineer A's environmental engineering firm was retained to analyze property adjacent to a protected wetlands area for residential condominium development. The assessment activated environmental stewardship obligations requiring complete disclosure of all material ecological findings — including threatened species observations — in written reports to public authorities.
Environmental Stewardship Wetlands Adjacent Development Assessment Obligation
Engineer A was obligated to apply environmental stewardship principles in conducting the environmental assessment of property adjacent to a protected wetlands area, including ensuring that the firm biologist's threatened species finding was included in the written report submitted to the public authority, consistent with the duty to protect ecological integrity of adjacent protected areas.
Throughout the environmental analysis and at the time of preparing the written report for the public authority
Public Welfare Paramount Invoked Against Engineer A Omission
Written report submitted to public authority considering developer's residential condominium proposal
Engineer A's omission of the threatened species finding from the written report submitted to the public authority compromises the public authority's ability to make an informed regulatory decision about a development that could harm a federally and state-recognized threatened species in an adjacent protected wetlands area, thereby subordinating public welfare to client development interests
In this context, public welfare encompasses not only immediate human safety but also the protection of threatened species and protected wetland ecosystems that are recognized as matters of public environmental concern by federal and state regulators; the engineer's paramount obligation to public welfare requires that the written regulatory submission reflect all material findings bearing on these protected interests
Confidentiality Non-Invocation by Client Removes Confidentiality Defense
Threatened species finding in environmental assessment report submitted to public authority
Because the developer client was not even aware of the threatened species finding prior to Engineer A bringing it to the client's attention, and never directly requested that Engineer A maintain it as confidential, the confidentiality rationale that supported non-disclosure in BER 89-7 does not apply in the present case — Engineer A's disclosure obligation is unimpeded by confidentiality concerns
Confidentiality obligations require affirmative client invocation — when a client has not treated information as confidential and was not even aware of it, the engineer cannot invoke confidentiality as a basis for omitting material findings from formal reports
Confidentiality Non-Applicability to Public Danger Disclosure
in BER Case No. 89-7, the facts revealed that the client had confided in the engineer and may have relied upon the engineer to maintain the information in confidence.
Engineer A Environmental Principal Client Confidentiality Non-Invocation Disclosure Facilitation Current Case
Environmental assessment of property adjacent to protected wetlands; firm biologist identified threatened species; client was unaware of the finding before Engineer A disclosed it; client never requested confidentiality
Client Confidentiality Non-Invocation Disclosure Facilitation Obligation
Engineer A was obligated to recognize that the developer client had not affirmatively invoked confidentiality over the threatened species finding — because the client was not even aware of the finding prior to Engineer A bringing it to the client's attention and never directly requested that Engineer A maintain it as confidential — and therefore had no confidentiality-based justification for withholding the finding from the written report submitted to the public authority.
At the time of preparing and submitting the written environmental assessment report to the public authority
Engineer A Wetland Delineation Incidental Post-Contract Environmental Escalation BER 04-8
Post-contract incidental observation of unauthorized wetland fill; client confrontation required as first step; escalation to regulatory authorities required if client fails to take corrective action
Engineer A (environmental engineer, wetland delineation, BER 04-8)
Incidental Post-Contract Environmental Violation Escalation Obligation
Engineer A was obligated, if the client failed to take appropriate steps to remedy the unauthorized wetland fill violation, to bring the matter to the attention of the appropriate federal and state environmental regulatory authorities, notwithstanding the absence of any ongoing contractual relationship.
Following client confrontation, if client fails to take appropriate corrective steps within a reasonable period
A few months after Engineer A completed the services, he drove by his client's property and noticed that the client had installed a substantial amount of fill material on more than half an acre across a portion of the wetlands without any permits, variances, or permissions.
Expertise Calibration Applied to Present Case vs BER 97-13
The Board distinguishes the present case from BER 97-13 on the basis that Engineer A in the present case has domain expertise as an environmental engineer confirmed by a qualified biologist, whereas Engineer A in BER 97-13 lacked structural engineering expertise and based observations on visual inspection alone — this expertise differential calibrates the disclosure obligation upward to require formal written report inclusion in the present case
Domain expertise in the relevant technical area transforms a speculative verbal notification obligation into a formal written report inclusion obligation — the engineer's capacity to make reliable professional judgments about the observed condition determines the appropriate form and reach of disclosure
Expertise-Calibrated Disclosure Threshold Principle
Objective Completeness in Public Authority Reports Violated by Engineer A
Engineer A's written report submitted to the public authority omits the material finding — reported by the firm's own biologist — that the condominium project could threaten a federally and state-recognized threatened bird species in the adjacent protected wetlands, thereby depriving the public authority of information that is directly pertinent to its regulatory decision on the development proposal
The threatened species finding is unambiguously material to the public authority's regulatory decision: it bears directly on the environmental impact of the proposed development on an adjacent protected wetlands area and involves a species recognized by both federal and state regulators as warranting protection; its omission from the written report constitutes a failure of objective completeness regardless of the verbal mention to the client
Objective Completeness in Public Authority Reports
Public Welfare Paramount Invoked in Engineer-Client Conflict
Environmental assessment report submitted to public authority for development approval
The Board invokes the paramount public welfare obligation to resolve the tension between Engineer A's duty as faithful agent to the developer client and the obligation to include threatened species findings in the formal written report submitted to the public authority — the public welfare obligation prevails
When engineering decisions affect third parties — including wildlife and future residents of the proposed development — who have no direct voice in the engineer-client relationship, the public welfare obligation requires complete disclosure to the regulatory authority responsible for protecting those interests
Engineering practice sometimes places the engineer in the position where the interests of a client and the interests of the public are in open and serious conflict.
Sometimes engineers are placed in situations where they must balance the extent of their obligations to their employer or client with their obligations to protect the public health and safety.
engineers play an essential role in society by taking steps and actions to see that products, systems, facilities, structures, and the land surrounding them are reasonably safe.
Engineer A Environmental Principal Expertise-Calibrated Disclosure BER Current Case
Environmental assessment of property adjacent to protected wetlands for residential condominium development; firm biologist identified a threatened bird species; Engineer A is an environmental engineer with relevant domain expertise
Expertise-Calibrated Disclosure Threshold Obligation
Engineer A, as an environmental engineer with consultation by a qualified biologist, was obligated to include the threatened species finding in the written environmental assessment report submitted to the public authority, because the finding was within Engineer A's domain expertise and was not based on surmise or speculation — distinguishing the present case from BER 97-13 where the engineer lacked structural engineering expertise and the observation was speculative.
Upon receipt of the biologist's threatened species finding and prior to submission of the written environmental assessment report to the public authority
Engineer A Environmental Principal Objective Completeness Written Report Current Case
Environmental assessment of property adjacent to protected wetlands for residential condominium development; firm biologist identified threatened bird species; written report submitted to public regulatory authority for development approval decision
Objective and Complete Reporting Obligation
Engineer A was obligated under NSPE Code Section II.3.a. to be objective and truthful in the written environmental assessment report submitted to the public authority and to include all relevant and pertinent information — including the threatened species finding reported by the firm's biologist — recognizing that the public authority approving the development would be interested in this information.
At the time of preparing and submitting the written environmental assessment report
Faithful Agent Obligation Bounded by Public Welfare in Environmental Assessment
Engineer A's faithful agent obligation to the developer client — which would ordinarily support compliance with client preferences about report content — is bounded by the ethical limits imposed by public welfare obligations, objectivity requirements, and sustainable development principles, such that the faithful agent role does not authorize omission of the threatened species finding from the formal written report
The faithful agent role is not absolute — it operates within the ethical limits established by the NSPE Code, including the obligation to include all relevant and pertinent information in professional reports submitted to public authorities
They and the members of their firms are privy to a great deal of information and background concerning the business affairs of their client.
Objective Completeness Obligation Under NSPE Code Section II.3.a.
Written environmental assessment report submitted to public authority for development approval
Engineer A's obligation under NSPE Code Section II.3.a. to be objective and truthful in professional reports and include all relevant and pertinent information requires inclusion of the threatened species finding in the written environmental assessment report submitted to the public authority approving the residential condominium development
NSPE Code Section II.3.a. imposes a non-waivable obligation to include all relevant and pertinent information in professional reports — this obligation runs to the public authority as the report's ultimate recipient, not merely to the client
Engineer A Client Verbal Mention Non-Substitution Obligation Instance
Engineer A verbally mentioned the threatened species concern to the developer client but did not include it in the written report submitted to the public authority. The public authority was considering the developer's proposal and was relying on the written report for its regulatory decision-making.
Engineer A was obligated to refrain from treating the verbal mention of the threatened species concern to the developer client as a substitute for inclusion of that finding in the written report submitted to the public regulatory authority, recognizing that the public authority's independent decision-making interest required complete written disclosure.
Client First Confrontation Applied in BER 04-8 Wetland Violation
Client's unauthorized filling of wetlands in violation of federal and state laws
Environmental Law Violation Reporting Obligation
In BER Case No. 04-8, the Board required Engineer A to first contact the client about the illegal wetland fill, point out the violation, demand remediation in compliance with applicable laws, and only escalate to regulatory authorities if the client failed to take appropriate steps — establishing the sequential confrontation-then-escalation framework
The client's right to an opportunity for voluntary remediation before external regulatory escalation reflects the relational dimension of the engineer-client relationship, balanced against the engineer's environmental stewardship and public welfare obligations
Client-First Confrontation Before External Reporting Obligation
Engineer A Wetland Delineation Client First Confrontation BER 04-8
Post-contract incidental observation of unauthorized wetland fill by former client; substantial violation of federal and state environmental laws; Engineer A had completed wetland delineation services and subsequently observed the fill while driving by the property
Environmental Law Violation Client Inquiry and Remediation Direction Obligation
Engineer A was obligated to contact the client, inquire about the unauthorized wetland fill actions, point out that the actions constituted a violation of federal and state environmental laws, and advise that steps needed to be taken to remedy the violation or obtain a variance from proper authorities — with all remedial actions in full compliance with applicable environmental laws and regulations.
In its decision, the Board set forth an appropriate course of action for Engineer A concluding that Engineer A should contact the client and inquire about the actions the client had taken and point out the actions were a violation of the law and that steps needed to be taken to remedy the violation or obtain a variance from the proper authorities.
Upon observing the unauthorized wetland fill post-contract
Written Report Completeness Obligation Applied to Threatened Species Finding
Engineer A's obligation to include the threatened species finding in the formal written environmental assessment report submitted to the public authority — rather than merely disclosing it verbally to the client — reflects the principle that written reports submitted to public regulatory authorities must be complete and not selectively omit material findings adverse to the client's development interests
The public authority's regulatory decision-making function depends on the completeness of the written record before it — verbal disclosure to the client does not substitute for written report inclusion when the public authority is the ultimate decision-maker
Written Report Completeness Obligation to Public Regulatory Authority
The written report completeness obligation to the public regulatory authority supersedes any client preference to limit disclosure to verbal notification, requiring Engineer A to include the threatened species finding in the formal written report
Faithful Agent Obligation Within Ethical Limits Applied to Developer Client Relationship
Developer Client Residential Condominium engagement
Engineer A's role as the developer client's retained environmental engineering firm creates a faithful agent obligation to serve the client's development interests, but this obligation is bounded by the ethical duty to include all material findings in the written report submitted to the public authority — the faithful agent role does not authorize omission of adverse environmental findings from regulatory submissions
The faithful agent obligation explains why Engineer A verbally disclosed the threatened species concern to the developer client, but it does not justify the omission of that finding from the written regulatory submission; the ethical limits of the faithful agent role are precisely that the engineer cannot suppress material findings from public regulatory authorities even at the client's implicit or explicit preference
In subsequent discussions with the developer client, Engineer A verbally mentions the concern, but Engineer A does not include the information in a written report that will be submitted to a public authority
Engineer A Objective Complete Reporting Public Authority Obligation Instance
Engineer A submitted a written report to a public authority considering a developer's residential condominium proposal adjacent to a protected wetlands area. The report omitted the firm biologist's finding that the project could threaten a bird species classified as 'threatened' by federal and state regulators, despite Engineer A having received this finding and verbally mentioned it to the developer client.
Engineer A was obligated to be objective and truthful in the written report submitted to the public authority and to include all relevant and pertinent information — including the firm biologist's threatened species finding — in that report, rather than omitting material environmental risk information that was adverse to the developer client's interests.
At the time of preparing and submitting the written report to the public authority
Engineer A Public Welfare Paramount Threatened Species Omission Obligation Instance
The public authority considering the developer's residential condominium proposal adjacent to a protected wetlands area was relying on Engineer A's written report. Engineer A's omission of the threatened species finding deprived the public authority of material information needed to protect public environmental welfare.
Engineer A was obligated to hold paramount the public welfare — including the ecological welfare of the protected wetlands and the threatened bird species — by ensuring that the public authority received complete information about the threatened species risk, rather than omitting that information from the written report in a manner that compromised the public authority's ability to make an informed regulatory decision.
Engineer A Bridge Sub-Consultant Speculative Finding Written Report Exclusion BER 97-13
Bridge inspection sub-consultancy; Engineer A observed apparent preexisting defective condition in bridge wall close to accident site; Engineer A lacked structural engineering expertise; assessment was based on surmise and visual inspection only
Speculative Finding Written Report Exclusion Obligation
Engineer A, as a civil engineer without structural engineering expertise whose observation of the bridge wall defect was based on general surmise and visual inspection, was obligated to refrain from including the speculative assessment in the formal written bridge inspection report, while preserving the observation in field notes and communicating it verbally through the client chain.
At the time of preparing the final bridge inspection report
Engineer A Threatened Species Written Report Inclusion Obligation Instance
Engineer A's environmental engineering firm was retained by a developer to analyze property adjacent to a protected wetlands area for residential condominium development. The firm's biologist reported to Engineer A that the project could threaten a bird species classified as 'threatened' (not 'endangered') by federal and state regulators. Engineer A verbally mentioned the concern to the developer client but omitted it from the written report submitted to the public authority.
Threatened Species Report Inclusion Obligation
Engineer A was obligated to include the firm biologist's finding that the condominium project could threaten a bird species classified as 'threatened' by federal and state environmental regulators in the written report submitted to the public authority considering the developer's proposal, and to advise the developer client of its inclusion.
Engineer A Environmental Principal Faithful Agent Bounded by Public Welfare Current Case
Environmental assessment of property adjacent to protected wetlands; tension between faithful agent duty to developer client and obligation to include material environmental findings in public authority report
Engineer A's faithful agent obligation to the developer client was bounded by the paramount public welfare obligation and the objective completeness obligation under NSPE Code Section II.3.a., such that the faithful agent duty did not authorize Engineer A to omit the threatened species finding from the written report submitted to the public authority.
Throughout the environmental assessment engagement and at the time of report preparation
Engineer A Faithful Agent Within Ethical Limits Developer Client Obligation Instance
Engineer A's faithful agent duty to the developer client was bounded by the overriding obligation to submit complete and accurate written reports to the public authority. The faithful agent duty did not justify omitting the threatened species finding to serve the developer's commercial interests in obtaining regulatory approval.
Engineer A was obligated to serve the developer client faithfully as a retained environmental engineering firm, but only within the bounds of professional ethics — meaning the faithful agent duty did not authorize omission of the threatened species finding from the written report submitted to the public authority, as such omission would have crossed the ethical boundary of the faithful agent role.
Throughout the engagement and at the time of preparing the written report
{'license': 'Professional Engineer (implied as principal of engineering firm)', 'specialty': 'Environmental engineering', 'firm_role': 'Principal', 'reporting_failure': 'Omitted threatened species concern from written public authority report'}
Principal in an environmental engineering firm retained to analyze a property adjacent to a wetlands area for residential condominium development; received a biologist's finding that the project could threaten a protected bird species; verbally mentioned the concern to the developer client but omitted the information from the written report submitted to the public authority considering the developer's proposal.
{'type': 'client', 'target': 'Developer Client'}
{'type': 'reporting_to', 'target': 'Public Authority'}
{'type': 'supervisor', 'target': 'Firm Biologist'}
Threatened Species Environmental Reporting Engineer